Bapna, J.—This is an appeal under sec. 75(2) of the Provincial Insolvency Act against the order of the learned District Judge of Merta, dated 28th February, 1955, by which he rejected the application of the insolvents Mangilal and Premraj for discharge and by the same order annulled the order of adjudication of the debtors as insolvents which was made earlier by order of 17th March, 1952. 2. The appellants Mangilal and his son Premraj applied to the court on 15th June, 1946, for being adjudged as insolvents. They were declared insolvents on 17th March, 1952, and were directed to apply for discharge within six months. This they did by application on 21st July, 1952. The application was contested by the creditors Hazarimal and Jeewanlal. The learned District Judge rejected the application for absolute discharge and annulled the order of adjudication on the following grounds— (1) Mst. Man Kanwar, mother of Mangilal obtained a decree against the debtors which was set aside by the High Court as being collusive vide its judgment, dated 19th July, 1954, in Ijlas-i-khas Appeal No. 5 of 1951 Ex. B. The learned District Judge said that the High Court had held in that judgment, "that Mst. Man Kanwar in collusion with Shri Mangilal had obtained the decree more with a view to defeat Shri Hazarimals claim than to realise anything herself from her son." The learned District Judge held that this observation satisfactorily proved that the insolvents had been guilty of fraud. (2) The insolvents continued to trade with Umrao & Co.; Ganganagar after they knew that they were insolvents. (3) The insolvents assets were insufficient to pay eight annas in a rupee to the creditors and they have not proved at all that this was due to circumstances for which they could not be held justly responsible. (4) The evidence of witnesses Shri Hanuman D.W. 1, Shri Parasram D.W. 2 and Shrichand D.W. 3 proved satisfactorily that the insolvents have got sufficient ornaments of gold and silver with them and they were spending Rs. 400/- or Rs. 500/- per month and living a good life and doing business in the market and spending sufficient amount at the time of marriages. He held in the subsequent para of his order that the entire assets after realisation amounted to Rs. 15,337/- and the proved claims of the creditors were— 1. Shri Hazari Mal ... ... Rs. 400/- or Rs. 500/- per month and living a good life and doing business in the market and spending sufficient amount at the time of marriages. He held in the subsequent para of his order that the entire assets after realisation amounted to Rs. 15,337/- and the proved claims of the creditors were— 1. Shri Hazari Mal ... ... Rs. 92,168.9.0 2. Shri Jeewanmal Rs. 45,784.9.3 ... ... 3. Shri Jeewanmal Rs. 2,082.12.6 ... ... Rs. 54,874-5 -9 4. Umrao & Co., Ganganagar ... ... Rs. 3,761-14-0 3. The learned Judge further ordered that the amount of Rs. 15,337/- lying in deposit may be rateably distributed among the above three creditors. 4. Hazarimal died during the pendency of the appeal and Motilal was brought on record as his legal representative by order of this Court, dated 7th September, 1956. 5. Learned counsel for Motilal raised two preliminary objections— The first preliminary-objection was that Hazarimal died on 21st July, 1955, and an application to bring on record Smt. Ganeshi widow of Hazarimal as his heir and legal representative was made on 24th August, 1955. She, however, died on 1st Oct., 1955, and the application to bring on record one Sukhlal as the legal representative of Ganeshi was submitted by the appellants on 31st January, 1956, i.e. more than 90 days after the death of Ganeshi and, therefore, the appeal had abated against Mst. Ganeshi, who is now represented by Motilal. 6. It may be mentioned that an application was made by Motilal respondent on 9th July, 1956, that Mst. Ganeshi, who was the heir of Hazarimal had died on 1st Oct., 1955, but prior to that date she had assigned the decretal debt to Motilal by a deed of assignment, dated 16th September, 1955 and, therefore, it was prayed on behalf of Motilal that he may be brought on record in place of Hazarimal or Mst. Ganeshi. 7. A second application was also made by Motilal on 11th July, 1956 in which it was said that Smt. Dhapu wife of Motilal was the daughter of Smt. Ganeshi and her heir-at-law under the Hindu Law. It was also alleged that Smt. Ganeshi had executed a will in favour of Subh Karan son of Motilal and Smt. Dhapu and this Subh Karan was the universal legatee and the legal representative of Smt. Ganeshi. It was also alleged that Smt. Ganeshi had executed a will in favour of Subh Karan son of Motilal and Smt. Dhapu and this Subh Karan was the universal legatee and the legal representative of Smt. Ganeshi. It was then said in this application that the appellants had not tried to bring the real legal representative of Smt. Ganeshi, but even their application to bring on record Sukhlal was barred by time. It was also contended that Smt. Ganeshi having died before she was brought on record, the application to bring her on record had become infructuous and the application of 31st January, 1956, if considered to be an application for bringing on record the legal representative of Hazarimal was barred by time under Art. 177 of the Indian Limitation Act having been brought after 90 days of the death of Hazarimal. In my opinion this preliminary objection has no force. Art. 177 of the Limitation Act is as follows— "Art. 177. Under the same Code to have the legal representative of a deceased defendant or of a deceased respondent made a party. Ninety days. The date of the death of the deceased defendant or respondent." 8. Hazarimal was the respondent in the case. He died on 21st July, 1955. The application for making his legal representative as party to the appeal was made on 24th August, 1955. This application was clearly within the time, permitted by Art. 177 of the Limitation Act. The next application of 31st January, 1956, to bring on record Sukhlal, a collateral of Hazarimal owing to the death of Mst. Ganeshi on 1st October, 1955, cannot be governed by Art. 177. Mst. Ganeshi had not been made a respondent as her death took place before she could be made a party. The application, dated 31st January, 1956, could neither be under O. XXII, R. 4, C.P.C. nor could it be governed by Art. 177, for the simple reason that Ganeshi died before she had been made a party to the appeal and O. XXII, R. 4(1) as also Art. 177 only becomes applicable when an application is made for causing the legal representative of the deceased respondent a party to the appeal. The provision under which an application of the nature under consideration can be made is sec. The provision under which an application of the nature under consideration can be made is sec. 146, C.P.C. Under that section, except in certain cases (which are not of relevance in the present case), where any proceedings have been taken or application made by any person, then the proceedings may be taken or an application may be made by or on behalf of any person claiming under him. The proceedings which could be taken in the present case were for the continuance of the appeal and this proceeding was to be taken against the person claiming under the respondent. Motilal claimed under Mst. Ganeshi and the latter claimed under Hazarimal. An application to bring on record Sukhlal or Motilal, (who was subsequently brought on record), could be made under sec. 146, C.P.C. The only article of limitation applicable to an application of this nature could be the residuary Art. 181, Limitation Act. I am supported in this view by two decisions : Manindra Kumar vs. Santi Rani (1) and Manmanthappa vs. Parvathi Bai (2). 9. It may also be stated that while the appellants came to know from enquiry that Sukhlal was the collateral of Hazarimal and the nearest heir of Hazarimal, Motilal him self made an application that he may be brought on record as an assignee of the decree by Mst. Ganeshi. The assignment was alleged to be made on 16th September, 1955, and was within the special knowledge of Motilal himself. There is no period of limitation prescribed for an application by the legal representative of the deceased to be brought on record. In that view also, Motilal was rightly brought on record on 19th July, 1956. In view of the assignment, the application of 11th July, 1956 that Smt. Dhapu or Subhkaran was the legal representative could not be seriously considered. There is no force in the first preliminary objection, which is hereby rejected. 10. The next preliminary objection was that the receiver was not made a party to the appeal and, therefore, the appeal should be dismissed. A few facts are required to be stated in respect of this objection : 11. There is no force in the first preliminary objection, which is hereby rejected. 10. The next preliminary objection was that the receiver was not made a party to the appeal and, therefore, the appeal should be dismissed. A few facts are required to be stated in respect of this objection : 11. The receiver had made a report on 21st July, 1952 about what realisations he could do and thereafter, what he stated, in substance is as follows :— "The insolvents have now no other property not have any current source of income nor are they doing any business. Only Premraj has joined service and it is with great difficulty that he is able to maintain the family of the inslovents. There does not appear to be any source of income of the appellants, which may give rise to any income in future. The insolvents have not concealed any property. Some of the property had been auctioned in execution of decrees previously and what remained has now been aold for Rs.460/-. 12. As stated earlier, the lower court had passed an order of annulment of adjudications and had given directions that the amount lying in deposit with the receiver should be distributed among several creditors. 13. The effect of an order of annulment is given in sec. 37 of the Insolvency Act and while certain acts of the receiver mentioned in the section are declared to be valid, that section lays down that "the property of the debtor who was adjudged insolvent shall vest in such person as the court may appoint, or, in default of such appointment shall revert to the debtor to the extent of his right or interest therein on such conditions (if any) as the Court may, by order in writing, declare". A plain reading of the section shows that the receiver washes his hands off, where an order of adjudication is annulled. The property which had been vested in the receiver is either vested in the person appointed by the count or in the debtor. In the present case, the order of discharge can be taken to have the effect of vesting the amount realised with the creditors in certain pro-portions and what was left to be done by the receiver was the doing of the ministerial act of distribution in the proportion ordered by the court. In the present case, the order of discharge can be taken to have the effect of vesting the amount realised with the creditors in certain pro-portions and what was left to be done by the receiver was the doing of the ministerial act of distribution in the proportion ordered by the court. The receiver, according to the order of the court, became divested of the property and in that view, he was not necessary to be made a party in the present appeal. 14. Learned counsel for the respondent urged that the learned District Judge, no doubt, annulled the adjudication but he had also rejected the application for discharge and the present appeal not only challenges the annulment, but also the refusal of the application for discharge. It was contended that in an appeal where the debtor wishes to challenge the refusal to discharge, the receiver is a necessary party. The last contention is correct so far as it goes. If the order had only been the refusal to discharge, the receiver would have continued to hold the property and would have continued to represent the estate of the insolvents. But in the circumstances of the present case when he was divested of the property of the insolvents, he was not a necessary party to this appeal. Further, in view of the report of the receiver, no other property of the insolvents existed, which was required to be administered by the receiver. He has not opposed the grant of discharge. In the circumstances, the hearing of this appeal will not be affected by the omission of the receiver to be made a party respondent. 15. The two preliminary objections having been disposed of, as above, learned counsel for the appellants contended that order of annulment was wholly unjustified in the circumstances of the case. Learned counsel relied on the summary of the conditions on which the adjudication may be annulled given by Sir D. F. Mulla at p. 312 of his Law of Insolvency in India (Second Edition). It was urged that none of the grounds mentioned by the learned District Judge in support of the order fell within secs. 35, 36, 39 and 43(1) of the Insolvency Act under which an order of annulment can be made. It was urged that none of the grounds mentioned by the learned District Judge in support of the order fell within secs. 35, 36, 39 and 43(1) of the Insolvency Act under which an order of annulment can be made. Learned counsel for the respondent conceded that the order of annulment could not be made in the present case as none of the circumstances which may justify the annulment existed. I agree with learned counsel for the appellant that the order of annulment was wholly erroneous. The grounds mentioned in the earlier part of the judgment given by the learned District Judge are not the grounds on which an order of annulment may be passed. 16. It was next contended by learned counsel for the appellants that the lower court erred in throwing out the application of the appellants for absolute discharge. Sec. 42 of the Provincial Insolvency Act refers to the grounds on which an absolute order of discharge can be refused, 17. Learned counsel for the respondent supported the order on the grounds mentioned by the learned District Judge and placed in the forefront of his arguments, the contention that the debtors had not satisfied the court that they cannot be held justly responsible for the assets being of under value. It was argued that the debtors had obtained a collusive decree in favour of Man Kanwar, in respect whereof the creditors took steps for setting it aside and the final court of appeal in that case held that the debtors were guilty of collusion and fraud. It was contended that the finding of the lower court, that the debtors were in possession of large amount of cash and jewellery and were living in affluence, was justified on the evidence and the debtors could, if they chose, place such property before the court and increase the value of assets to eight annas in a rupee. It was also urged that clause (b) of sec. 42 also stood in the way of the insolvents as they could not show by production of their account books how they came to be indebted to such a large extent. It was next urged that the lower court was right in holding that the appellants continued to trade with Umrao & Co., after they knew that they were practically insolvents. It was next urged that the lower court was right in holding that the appellants continued to trade with Umrao & Co., after they knew that they were practically insolvents. Learned counsel also urged that the debtors had failed to prove why they continued to borrow such huge amounts when they knew that they were not able to pay the same and that clause (d) of sec. 42 also stood in the way of granting absolute discharge. The matter of fraud in respect of the decree by Man Kanwar was set up as a bar to the grant of absolute discharge under clause (1) of sec. 42. 18. I have gone through the record with the assistance of learned counsel and I have no hesitation in holding that none of the grounds existed in the present case which may bar the grant of absolute discharge. 19. Learned counsel for the respondent in respect of his first contention relied on two authorities. Vasant Rao vs. Uttam Rao (3) and Alidino Wali Muhammad vs. Noor Muhammad{4). 20. It may be stated in respect of the first authority and this is so with great respect, that sec. 42(a) has been confused with sec. 42(d). Sec. 42(a) relates to the circumstances due to which the assets are not equal to eight annas in the rupee and what has been laid down is that for such circumstances, the insolvent must satisfy that he cannot justly be held responsible. What this section means to say is that if there is conduct or act of the insolvent debtor which has led to the diminution in the value of the assets beyond the required limit or he has done something to keep out of the reach of the court any assets, which if realised, could go to the satisfaction of his debts, then in such conditions, the absolute discharge will not be granted. He has to show negatively that he is not responsible for the assets being less than 50 % of the debts. The matter of incurring debts without any reasonable or probable ground of expectation that be would be able to repay the same and on which emphasis has been laid in the case of Vasant Rao vs. Uttam Rao (3) is a matter which has to be considered under clause (d) of sec. 42. The matter of incurring debts without any reasonable or probable ground of expectation that be would be able to repay the same and on which emphasis has been laid in the case of Vasant Rao vs. Uttam Rao (3) is a matter which has to be considered under clause (d) of sec. 42. In the present case, the debtor has given evidence that he had various properties at different places and although according to the debtor, they were of high value, they had been sold in execution of the decrees of the creditors, particularly of Hazarimal who is opposing this appeal, at low prices. 21. The learned District Judge has committed error in finding on the basis of this evidence that the debtors were possessed of property which they had failed to place at the disposal of the court or that they had income which they were not accounting for, or that they are living affluently and thus concealing their source of income. On the merits of this case, it must be held that the fact of the assets not being such as may satisfy the proved debts to the extent of eight annas in the rupee was due to circumstances for which the debtors could not be justly held responsible. 22. The contention of learned counsel for the respondent that the appellants failed to produce account books which may show how the indebtedness arose is not correct. According to Mangilal, their business had to be closed in Svt. 1984 up to, which period they kept their account books and these were produced in court. It is not disputed that the debts which had been proved are of that period. These debts subsequently merged in the decrees of the proved debts, i.e., the decree of Hazarimal dated 9th September, 1932, the first decree of Jeewanmal dated 27th May, 1932 and the second decree of Jeewanmal dated 7th May, 1932. The fourth debt of Umrao & Co. is of near about 1946. This debt is, however, of a small amount of Rs. 3,76l/l4/- and is negligible compared to the huge debts outstanding of creditors Nos. 1 and 2 arising out of the decrees. The judgments could very well show how these debts were incurred and if the creditors wanted to see the account books, they had already been placed in court. This debt is, however, of a small amount of Rs. 3,76l/l4/- and is negligible compared to the huge debts outstanding of creditors Nos. 1 and 2 arising out of the decrees. The judgments could very well show how these debts were incurred and if the creditors wanted to see the account books, they had already been placed in court. There is no suggestion that any of these huge debts were incurred after the business had been closed and were not accounted in the account-books. 23. The next contention that the insolvents continued to trade after knowing themselves to be insolvents, has been accepted by the lower court also, by reference to the admission in the statement of the debtor that he did business with Umrao & Co. What the debtor has said is that a small amount of business was done by him with Umrao & Co., but even that resulted in loss and was given up. Now, it is not the law that if a man gets into difficulties, he should sit quiet in his house. He has to make a living to feed himself and his family and if he makes some attempts to earn honestly either by service or by some small trade, it would not bring his case in clause (c). If, however, he continues to do speculation or enters into contracts of large valuation knowing that he will not be able to fulfil such contracts, that may bring the case under cl. (c). The lower court, therefore, misdirected itself when it said that the small amount of business with Umrao & Co. disentitled the debtors to an order of discharge. 24. Finally, learned counsel for the respondent relied on cl. (i) of sec. 42 which has also been relied upon by the learned District Judge and it is urged that Mangilal is guilty of fraud in obtaining a decree in favour of his mother. As I read the judgment of I.K. Appeal No. 5 of 1951, the only fraud which can be attributed to Mangilal was that although, Man Kanwars debt had been barred by time, Mangilal became a party to the agreement to refer the case to arbitration and that by so doing, Man Kanwar was able to obtain a decree in terms of the award. I do not find anything in the conduct of Mangilal, which may amount to fraud within the meaning of cl. (i) of sec. 42. The facts reproduced in the judgment show that it was Mangilals father who had executed a deed of mortgage in favour of his wife Man Kanwar in lieu of certain debts and when the validity of the mortgage was challenged by the creditors, the Chief Court which finally disposed of the case found that a sum of Rs. 23,000 appeared to be due from Khemkaran, Mangilals father. As stated earlier, the fraud alleged to have been committed by Mangilal was that after the mortgage had been set aside, Man Kanwar and Mangilal agreed to refer the claim of Man Kanwar to arbitration, although the claim was barred by limitation by that time. Under sec. 3 of the Indian Limitation Act, if a claim is brought before a court which is barred by time, it becomes the duty of the court to dismiss the claim notwithstanding that the bar of limitation is not pleaded by the defendant. The duty, if any, was of the arbitrator to reject the claim as being barred by time, although Mangilal may not have set up limitation as defence. It may, therefore, be the misconduct of the arbitrator, if he gave an award in favour of Man Kanwar and the conduct of Mangilal in agreeing to refer the dispute to arbitration does not amount to a fraud, which would disentitle him to an order of discharge. The matter might have been different, if the claim of Man Kanwar had no basis whatsoever and a fictitious claim might have been put forward by Man Kanwar. The fact that a certain claim is barred by time may be unenforceable in the court of law, but it does not wipe out the claim. The matter might have been different, if the claim of Man Kanwar had no basis whatsoever and a fictitious claim might have been put forward by Man Kanwar. The fact that a certain claim is barred by time may be unenforceable in the court of law, but it does not wipe out the claim. In fact, it has been observed in one of the paragraphs of that judgment "that the relationship of mother and son subsisted between these two persons (Man Kanwar and Mangilal and if they wanted to renew the debts there was nothing to prevent them from doing so by executing a promissory note or a fresh contract for the purpose, but for one thing, that was never done, and in any case Mangilal, for aught we know, might not have been willing to do so." This kind of observation negatives the contention that the claim of Man Kanwar was fictitious. 25. As a result of my carefully examining the entire facts and circumstances of the case, I am of the opinion that there is no ground for refusing to grant a discharge to the debtors and it only remains to be considered whether such discharge should be given as absolute or conditional. In the present case, the debts were incurred long before 1932. The application for adjudging the petitioners as insolvents was filed on 16th May, 1946 and according to the report of the receiver, every property in the hands of the debtors had been accounted for and realised and there does not remain any property which may fetch any value and according to the receiver, the debtors were eking out exis-tence with difficulty and there was no likelihood of any property being received in the near future. This report is dated 21st July, 1952 and although more than six years have elapsed since then, no property has been found in the hands of the debtors on which the creditors could lay their hands. In the circumstances, it would be wholly a mockery of law, if the debtors were to continue to remain undischarged. 26. I, therefore, set aside the order both of the annulment of the adjudication as also the refusal to grant an absolute discharge and hereby grant an absolute order of discharge of the debtors Mangilal and his son Premraj. In the circumstances, it would be wholly a mockery of law, if the debtors were to continue to remain undischarged. 26. I, therefore, set aside the order both of the annulment of the adjudication as also the refusal to grant an absolute discharge and hereby grant an absolute order of discharge of the debtors Mangilal and his son Premraj. The parties will bear their own costs in this Court as also in the lower court in respect of this application. 27. Learned counsel for the appellants feebly contended that the amount of Rs. 4000/- which was kept for the construction of a house for the debtors in execution of the decree of Hazarimal in accordance with the law of Marwar then in force may not be distributed to creditors. According to the law of insolvency (sec. 28), all property of the insolvents except such as may be exempted by the Civil Procedure Code vests in the receiver for distribution to the creditors. Whatever may be the law of Marwar, the Indian Code of Civil Procedure came into force in Marwar on 1st April, 1951 and thereafter the debtors were not entitled to the privilege of being permitted to construct and live in a house so as to reduce the available assets. The amount of Rs. 15,337/- will be distributed pro rata to the creditors, whose claims have been accepted by the court.