JUDGMENT: This is an application by the creditor under sections 9(2) , 10 ,11 ,12 and 13 of the Presidency Towns Insolvency Act III of 1909, for adjudicating the respondent as insolvent on the ground that the petitioner had obtained a decree against the respondent in O.S.No.382 of 1975 on the file of the City Civil Court, Madras, for a sum of Rs.5,050/- together with interest on Rs.5,000/- at 24% per annum from the date of claim, viz. 18-7-1977 till the date of decree and thereafter at 6% per annum till the date of realisation and costs. The said decree is marked as Exhibit P-1. It is also alleged in the petition that the petitioner had applied for the issue of insolvency notice in Application No.15/83 and the same also had been ordered by this court on 29-4-1983. The respondent had also filed an application No.195 of 1983 to set aside the insolvency notice and the same was dismissed on 12-9-1983. Hence, the petitioner has come forward with this application for adjudicating the respondent as an insolvent. 2. In the counter statement, the respondent states that the respondent had dealings only with Thirunavukkarasu Chettiar, P.W.1, who is none other than the husband of the petitioner and the respondent did not have any dealing with the petitioner directly. In respect of the two transactions the respondent had with Thirunavukkarasu Chettiar by which the respondent had borrowed Rs.1,500/- on each occasion, the respondent issued blank cheques, containing only his signatures and they were blank regarding date, payer's name and the amount. As supporting documents, the respondent executed two promissory notes and out of the two promissory notes which are subject matter of the suit 0.S.No.3821 of 1975, one promissory note was blank except for the amount which was filled in as Rs.1,500/- but the promisee's name and date were kept blank. As regards the other promissory note, the amount, date and name of the promissee were kept blank. It is stated in the counter statement that the said Thirunavukkarasu Chettiar had filed the promissorty notes and obtained a decree. It is also alleged if the value of jewels entrusted by the respondent to P.W.1 is taken into account, no amount is really due to the petitioner. It is stated in the counter statement that the said Thirunavukkarasu Chettiar had filed the promissorty notes and obtained a decree. It is also alleged if the value of jewels entrusted by the respondent to P.W.1 is taken into account, no amount is really due to the petitioner. The second contention raised on behalf of the respondent is that in any event, the decree in O.S.No.3821 of 1975 is more than two years old and the last E.P. filed by the petitioning creditor, viz. 1430 of 1979 was dismissed on 1-8-1980 and more than two years have elapsed after the disposal of E.P.No. 1430 of 1979 and as such, the decree in 0.S.No.3821 of 1975 is not executable straightaway It is also pointed out that according to Order XXI, Rule 22 of the Code of Civil Procedure, a decree more than two years old cannot be executed unless a show cause notice is issued to the judgment debtor. 3. The points for determination in this Insolvency petition are: (1) Whether the contention of the respondent that no amount is due under the decree can be accepted? (2) Whether the legal contention raised on behalf of the respondent that the decree is not executable under section 9(2)(5)(c) of the Presidency Towns Insolvency Act is sustainable? 4. The petitioner's husband was examined as P.W.1. He spoke to the fact that his wife, the petitioner herein had obtained a decree against the respondent, which is marked as Ex.P-1 as stated above, and that an insolvency notice has been issued by the petitioner as per Ex.P-2 and that the decree still remains unsatisfied and the petition filed to set aside the insolvency notice was dismissed by this Court. 5. On behalf of the respondent, the respondent was examined as R.W.1 and he has deposed to the averments made in the counter and also filed Ex.R-1, the certified copy of the order made in the last E.P. stating that the E.P. was dismissed more than two years prior to the filing of the Insolvency Petition on 1-8-1980. 6. 5. On behalf of the respondent, the respondent was examined as R.W.1 and he has deposed to the averments made in the counter and also filed Ex.R-1, the certified copy of the order made in the last E.P. stating that the E.P. was dismissed more than two years prior to the filing of the Insolvency Petition on 1-8-1980. 6. In so far as the first contention that no amount is due under the decree in O.S.No.3821 of 1975 of the City Civil Court, Madras, is concerned, the contention on the part of the respondent cannot be accepted since the very same plea was put forward before the trial court at the time of the application for leave to defend and was rejected by the City Civil Court. The respondent also filed a Civil Revision Petition against the orders of the City Civil Court and the C.R.P. was dismissed even at the admission stage. He has put forward similar contention in E.P.1430 of 1978, the final order copy of which is marked as Ex.R-1 and the same was also negatived by the executing Court and the same plea was raised in the application to set aside the Insolvency Notice before this court and this court also had negatived the same. Under the circumstances, it is too late in the day for the respondent to raise the same plea once again in defence to this insolvency application. Hence, the first contention of the respondent will have to be rejected. 7. In so far as the second contention is concerned, it is the case of the respondent that in any event the decree is not executable and the Insolvency Application cannot be based on the same. The decree is dated 21-2-1977 and the. last E.P. viz. E.P.No.1433 of 1979 was dismissed on 1-8-1980. The application for issuing insolvency notice was filed on 29-4-1983 more than two years after the dismissal of the last E.P. Hence, it is contended that under Order XXI, Rule 22 of the Code of Civil Procedure the petitioner is not entitled to proceed in execution unless a notice is issued to the respondent to show cause why the decree should not be executed. In support of his contention, reliance is placed upon a judgment of the Single Judge of Bombay High Court in A.I.R.1977 Bombay 305Bhurmal Kapur-chand and Co. v. P.M.Tools Co. where it is observed as follows: “16. In support of his contention, reliance is placed upon a judgment of the Single Judge of Bombay High Court in A.I.R.1977 Bombay 305Bhurmal Kapur-chand and Co. v. P.M.Tools Co. where it is observed as follows: “16. In the light of the principle laid down by the Privy Council, the Privy Council upheld the contention of the judgment-debtor as to the invalidity of the sale for want of leave of the court for execution against legal representative. The same principle must also apply to a case where the leave of the court is necessary in regard to a decree which is more than two years old because in principle there can be no distinction between the two situations in so far as the requirement of the leave of the court is concerned. I therefore, must hold that in absence of leave under Order 21 , rules 22 and 23, of the Code of Civil Procedure, it is not open to the judgment creditors herein to execute the said decree. The execution of the said decree is not permissible under the provisions of the Code of Civil Procedure. It must also be held that the judgment-creditors herein are not entitled to resort to any equitable mode of execution thereof. This is further buttressed by the principle that if it is not permissible for the judgment creditors to execute the decree under the provision of the Code of Civil Procedure directly, this Court in exercise of its discretion will not allow the judgment-creditors to execute the said decree indirectly by circuitous method of insolvency proceedings.” The principles laid down in the judgment of the Bombay High Court had been whittled down by an amendment of section 9(2) of the Presidency Towns Insolvency Act, wherein the term ‘not executable’ occurring in section 9(2)(5)(c) is restricted only to cases where the decree cannot be executed on account of the special enactments relating to relief of indebtedness referred to in section 9(2)(5)(b). The said amended section can usefully be extracted: “9(2)(5) Any person served with an Insolvency Notice may, within the period specified therein for its compliance, apply to the Court to set aside the insolvency notice on any of the following grounds, namely: “(a) that he has a counter claim or set off against the creditor which is equal to or is in excess of the amount due under the decree or order and which he could not, under any law for the time being in force, prefer in the suit or proceeding in which the decree or order was passed; (b) that he is entitled to have the decree or order set aside under any law providing for the relief of indebtedness and that - (1) he has made an application before the competent authority under such law for the setting aside of the decree or order; or (ii) the time allowed for the making of such application has not expired; (c) that the decree or order is not executable under the provisions of any law referred to in clause (b) on the date of the application.” In view of the amendment, the principle laid down in the decision of the Bombay High Court, cannot be made applicable to the facts of this case. 8. 8. The respondent also relies upon the passage in Williams and Muir Hunter's the Law and Practice in Bankruptcy, nineteenth edition, page 32, where the words “being a decree or order which has become final and the execution whereof is not stayed” used in section 9(5)(2) of the Presidency Towns Insolvency Act had been explained as follows: “These words include cases where the creditor at the time the notice is issued is not in a position to issue execution as well as those where execution has been stayed.” The respondent also relies on a passage in the Law of Insolvency in India by Mulla, 3rd Edition, page 100, where the words “execution of which is not stayed” occurring in section 9(2)(2) of the Presidency Towns Insolvency Act is explained as follows: “The words” execution of which is not stayed “(”execution thereon not having been stayed“) are not confined to cases where there has been an express stay of execution but cover all cases in which the creditor at the time when the bankruptcy notice is issued, is not in a position to issue execution.” The above two passages also are of no avail in view of the amendment to section 9(2) of the Presidency Towns Insolvency Act, referred to above. Hence, the said legal contention raised on behalf of the respondent also cannot be accepted. 9. In the result, the petitioner has made out a case for adjudicating the respondent as insolvent and consequently, the application is allowed and the respondent is adjudged as insolvent and the assets of the respondent will vest with the Official Assignee. Costs will come out of the estate. Application allowed.