JUDGMENT V. Ramaswami, J. 1. The respondent herein filed O.S. No. 3821 of 1975 on the file of the Court of the VII Assistant Judge, City Civil Court, Madras, under Order 37 Rules 1 and 2 of the Code of Civil Procedure, for the recovery of a sum of Rs. 5,050 being the principal of Rs. 5,000 and interest due under a promissory note, dated 1-5-1975. The appellant filed an application for leave to defend the suit on the ground that he has got a counterclaim. Since that petition for leave to defend was filed out of time and the delay was not excused, that petition was dismissed and the suit was decreed as prayed for, by judgment and decree dated 21st February, 1977. It may be mentioned that during the pendency of the suit, the respondent-plaintiff had filed an application for attachment before judgment of the debtor's property, namely Door No. 17/1 (New Door No. 30, Devadi Street, Mylapore, Madras-4, in I.A. No. 10450 of 1975 and obtained an order of attachment before judgment on 2-2-1977, which became absolute when the suit was decreed on 21-2-1977. Then the respondent Filed E.P. No. 1644 of 1977 for executing the decree and that was closed without the creditor realising any money. Thereafter, the respondent filed I.A. No. 41 of 1978 adjudicating the appellant as an insolvent. But that petition was dismissed on 27-4-1979 on the ground that it was filed beyond three months since the date of the filing of the execution petition in E.P. No. 644 of 1977. Another petition, in E.P. No. 988 of 1978 filed by the judgment creditor was also closed without realising any money. The respondent then filed a fresh execution petition in E.P. No. 1430 of 1979 and obtained a fresh order of attachment on 11-7-79 and actually, attached the property on 3-9-1979. On the ground that the decree amount was not paid for 21 days from the date of the attachment, namely 3-9-1979, another petition to declare the appellant as an insolvent was filed in I.P. No. 5 of 1980 under Section 9(1)(e) of the Presidency Towns Insolvency Act, 1909. This petition also was dismissed on 20-11-1981 on some ground or other, which need not be set out here. This petition also was dismissed on 20-11-1981 on some ground or other, which need not be set out here. In the meanwhile, the Presidency Towns Insolvency was amended by the Insolvency Laws (Amendment) Act, 1978 No. 28 of 1978 which came into force on 15-6-1979. One of the amendments effected by the said Act was in respect of Section 9 of the original Act by introducing Sub-sections (2), (3), (4) and (5) to the original Section 9 which was renumbered as Sub-section (1) Sub-section(2) provided that without prejudice to the provisions of Sub-section(1), a debtor commits an act of insolvency if a creditor, who has obtained a decree or order against him for the payment of money (being a decree or order which has become final and the execution whereof has not been stayed), has served on him a notice, (which is referred to in the Act as insolvency notice) and the debtor does not comply with that notice within the period specified in that notice. Taking advantage of this provision, the respondent-decree-holder issued an insolvency notice No. 15 of 1983 on 30-4-1983, informing the debtor that within thirty days after service of that notice he must pay a sum of Rs. 9,060 being the amount due on the decree obtained by her. In turn, the appellant filed Application No. 195 of 1983 under Section 9(5) of the Act praying to set aside the insolvency notice on the ground mentioned in the affidavit filed in support of that application. After the expiry of the thirty days' time given, the respondent filed I.P. No. 49 of 1983 under Sections 9(2), 10, 11, 12 and 13 of the Presidency Towns Insolvency Act, 1909, praying to adjudicate the debtor as an insolvent and direct the estate to be vested with the Official Assignee to be administered according to the Insolvency Law. Number of contentions were raised by the learned Counsel for the appellant, but a learned single Judge dismissed Application No. 195 of 1983 filed under Section 9(5) of the Act on 12-9-1983. Consequently, I.P. No. 49 of 1983 was taken up for final disposal and, by an order dated 28-1-1985, that petition was allowed and the appellant was adjudicated insolvent and his assets and other effects were directed to be vested with the Official Assignee for the purposes of administration. It is against these two orders, O.S.A.Nos. Consequently, I.P. No. 49 of 1983 was taken up for final disposal and, by an order dated 28-1-1985, that petition was allowed and the appellant was adjudicated insolvent and his assets and other effects were directed to be vested with the Official Assignee for the purposes of administration. It is against these two orders, O.S.A.Nos. 2 of 1984 and 26 of 1985 have been filed. 2. In these appeals, learned Counsel for the appellant raised a number of contentions. The first contention was that though the decree in O.S. No. 3821 of 1975 is a decree for Payment of money and it has become final, it cannot be considered as a decree "the execution whereof has not been stayed within the meaning of Sub-section (2) of Section 9 of the Act, This was on the ground that in cases where a period of two years has elapsed from the date of the decree or from the date of the last order in the previous execution petition, the permission of the Court to execute the decree under Order 21, Rule 22, Code of Civil Procedure is necessary and, so long as such permission is not obtained, the decree shall be deemed to be not executable and, in a case where the decree-holder is not entitled to issue immediate execution of the decree, the execution of the decree shall be deemed to have been stayed. In support of this contention, learned Counsel placed strong reliance on a decision of the Bombay High Court reported in Bhurmal Kapurchand & Co. v. P.M. Tools Co. A.I.R. 1977 Bom. 305. The matter was considered in that case with reference to the legality of a practice adopted by the Insolvency Registrar of the Bombay High Court with regard to the issuance of insolvency notice. A provision similar to Sub-section (2) of Section 9 of the Act was there in Section 9-A of the Bombay Presidency Towns Insolvency Act and whenever an application for issuing an insolvency notice was filed the Registry insisted that before an insolvency notice could be issued in respect of a judgment-debt under a decree which was more than two years old, proceedings under Order 21, Rule 22, C.P.C. must first be initiated and the notice under that rule should be made absolute by a competent Court. It was the legality of this requirement that was considered. It was the legality of this requirement that was considered. The learned Judge was of the view that a judgment-debt, to sustain an insolvency notice, must arise out of an enforceable decree and not out of a decree which otherwise is unenforceable." A decree which is more than two years old is, by its own force, (proprio vigore) unexecutable. The judgment debt arising out of such a decree is equally unenforceable unless leave as required by Order 21, Rule 22, C.P.C. is first obtained in that behalf." In support of this view, the learned Judge has a relied upon a Division Bench Judgment of the same High Court in Daljit Kishan v. Nihalchand Jethaji the unreported judgment of Bombay High court dt. 19-7-1973, Which was followed in another decision in A.D. Gandhi v. S.L. Thakurdas, 3 (1978)77 Bom.L.R., 119 and certain passages in Halsbury's Laws of England. Before we deal with the judgments referred to, we may point out that we are unable to agree with the view that any leave of the Court was required for execution of a decree which is more than two years old under Order 21, Rule 22, C.P.C. Under Section 51 of the Code of Civil Procedure, on the application of a decree holder, the Court may order execution of a decree by delivery of any property specifically decreed, by attachment and sale or by sale without attachment of any property, by arrest and detention of the judgment-debtor in prison, by appointing a receiver or in such other manner as the nature of the relief granted may require. The provisions of the Code, in particular Order 21, deal with the various modes of executing the decrees and in respect of every mode of execution, notices are required to be issued to the judgment-debtor, though, in some cases, some interim orders could be made, but where an application for execution is made more than two years after the date of the decree or against a legal representative of a party to the decree, or against an assignee or receiver in insolvency, the Court executing the decree is required to issue notice to the person against whom execution is sought for, requiring him to show cause on the date to be fixed why the decree should not be executed against him. This in our view, does not make the decree in executable, nor could it be said that this would amount to a staying of the execution till the notice is served and an explanation is obtained and the execution is ordered to be proceeded with. Issuing a notice under Rule 22 of Order 21 itself is part of the execution of the decree. In cases falling under Rule 11(1) of Order 21, every application for execution of a decree shall be in writing signed and verified in the manner prescribed. On receipt of the application, the Court shall ascertain whether such of the requirements of Rules 11 to 14 of Order 21 as may be applicable to the case, have been complied with. When the application is defective, until the defects are remedied, the application could not be admitted. Only if the application is in proper form and in accordance with the rules, it could be admitted and only when the application is admitted, the Court shall enter in the proper register a note of the application, the date on which it was made, and order execution of the decree in accordance with the nature of the relief asked for in the application. It could not be contended that the decree itself was inexecutable on the ground that the application filed was not in accordance with law. The procedure to be adopted for executing the decree in a given situation is, in our view, different from the executability or otherwise of the decree itself. The decree may not be executable if a time for compliance with the terms of the decree had been granted to the judgment-debtor or the appellate Court may amend or the executing Court may stay the execution of the decree or where the decree had been satisfied by payment. But, on the ground that before an actual relief is obtained in execution of the decree certain formalities have to be gone into, the decree itself does not become inexecutable. One such requirement of issuing a notice before the relief is granted is that contained in Rule 22 of Order 21, requiring a notice to be given to the judgment-debtor in cases where the execution petition is filed more, than two years after the decree or where two years have elapsed from the date of the last order in the prior execution petition. The decision in Daljit Kishan v. Nihalchand Jethaji unreported judgment of Bombay High Court, dt.19-7-1973, relied on by the leaned single judge of the Bombay High Court, does not, in our opinion, support the view of the learned Judge. It may be mentioned that that was not a case relating to one falling under Order 21, Rule 22, C.P.C. That was a case where the suit was decreed with costs by the High Court of Bombay, but while drafting the decree in exercise of the powers under Section 118, C.P.C. the High Court drafted the decree before the costs incurred in the suit were ascertained and taxed. The question for consideration was whether that decree for the principal amount and interest alone, without the prevision for costs, was executable. It may be mentioned that Section 118 enables the High Court to draft a decree without waiting for ascertainment of the costs and taxation of the same. The Division Bench, in that case, held that the decree was executable and merely because the costs were not taxed and included in the decree, the decree did not cease to become an executable decree. While holding so, the learned Chief Justice observed: "It is well settled that if there is any impediment in the way of a judgment creditor executing a decree or if the decree is not presently executable, no insolvency notice can be founded on such a decree. It is not necessary that the execution of the decree should be stayed formally by the executing Court. Even without any such formal order of stay, if the judgment-creditor is not in a position to satisfy the insolvency Court that he has a right to execute the decree in presenti the insolvency notice taken out by the judgment-creditor must fail. This is the passage relied on by the learned Judge in the decision reported in Bhurmal Kapurchand & Co. v. P.M. Tools Co. A.I.R. 1977 Bom.305. We are unable to see how this passage, in any way, support the decision of the learned Judge. This is the passage relied on by the learned Judge in the decision reported in Bhurmal Kapurchand & Co. v. P.M. Tools Co. A.I.R. 1977 Bom.305. We are unable to see how this passage, in any way, support the decision of the learned Judge. Repeatedly, the learned Chief Justice was expressing the view that for the purpose of determining whether an insolvency notice could be issued or not, the only point that could be considered is that the amount is due in respect of a decree to the creditor and that the amount has not been paid by the debtor on his being called upon to pay. That was the cause of action to file the insolvency petition and that amounted to an act of insolvency. The decree, in the present case, has not been satisfied by payment or otherwise. The decree-holder can file a petition for execution. There is no impediment for filing such an execution petition, though, in respect of any relief that is asked for, a particular procedure prescribed under the Code will have to be followed. It does not make the decree itself not executable. 3. The decision in A.D. Gandhi v. S.L. Thakurdas (1974) 77 Bom.L.R.119 related to the question concerning the grounds of defence open to a judgment-debtor at the stage of insolvency notice issued to him under Section 9-A in its application to Bombay, and in particular, the specific question which required to be considered was whether the events which might have taken place after the issue of the notice and in particular, after the period specified in the insolvency notice, was over, could, nevertheless, be considered the Court for purposes of deciding the validity of the insolvency, notice. The learned Judges held that not only the decree should be good and executable at the time of the insolvency notice, but also it should be executable and should not have been set aside or varied at the time when the validity of the insolvency notice was decided. We are not concerned with that question in this case, it is not the case of the appellant that on the date when his Application No. 195 of 1983 was decided the decree had become inexecutable by reason of discharge or satisfaction or otherwise. We are not concerned with that question in this case, it is not the case of the appellant that on the date when his Application No. 195 of 1983 was decided the decree had become inexecutable by reason of discharge or satisfaction or otherwise. In fact, the passage in 3 Halsbury's Laws of England (Fourth Edition) paragraph 262 (page 166), referred to by the learned Judge in Bhurmal Kapurchand & Co. v. P.M. Tools Co. A.I.R. 1977 Bom. 305, related to a case where a creditor had accepted a bill or a promissory note for the amount of his debt and the view expressed was with reference to this acceptance and it was held that the acceptance of the bill or the promissory note operated as an agreement not to enforce the decree during the currency of the bill and that a creditor who had accepted a bill of exchange could not issue bankruptcy notice under the Bankruptcy Act of 1883. However, we may also mention that in an unreported judgment of the Bombay High Court, another single Judge of that High Court has taken the view that even in respect of a decree which would come under Order 21, Rule 22, the decree is executable and could not be said to have been stayed. We are, therefore, unable to agree with the view of the learned Judge in Bhurmal Kapurchand & Co. v. P.M. Tools Co. A.I.R. 1977 Bom. 305. This objection of the learned Counsel is, therefore, not sustainable. 4. It was then contended by learned Counsel that the insolvency notice was not valid on the ground that the appellant has a counter-claim or set-off against the creditor, which is equal to or in excess of the amount due under the decree. First of all, this ground has not been dearly stated in the affidavit filed in Application No. 195 of 1985. Apart from this, though in 1975 when the suit was filed, he wanted to make a counter-claim, he did not make any counter-claim and actually on record there is no counter-claim. There is no decree or other accepted debt also to claim any set-off, and therefore this is not a case to which Section 9(5) is applicable. 5. Apart from this, though in 1975 when the suit was filed, he wanted to make a counter-claim, he did not make any counter-claim and actually on record there is no counter-claim. There is no decree or other accepted debt also to claim any set-off, and therefore this is not a case to which Section 9(5) is applicable. 5. It was then contended that this ground for invoking Section 9(2), he is barred from claiming the same both under Order 2, Rule 2 as also Explanation IV to Section 11 C.P.C. Assuming, for purposes of arguments, that Order 2, Rule 2 as also Section 11 of the Code of Civil Procedure or the principles contained therein are applicable to insolvency proceedings, we are unable to agree with the learned Counsel that either on the principles of Order 2, Rule 2, or on the principles of Section 11, this petition is barred. As already stated, the amending Act came into force on 15-6-1979. It enabled the creditor who has obtained a money decree to issue a notice as provided in Sub-section (2) of Section 9 of the Act requiring the debtor to pay the money within a particular time and if he fails to pay it that amounts to an act of insolvency. In this case, the notice was issued only on 30-4-1983 giving 30 days' time. The act of insolvency comes into existence only when the debtor does not pay the money within the said thirty days' time. That period of 30 days will take us to 30th May, 1983 and the application on this ground could not have been taken when I.P. No. 5 of 1980 was pending or prior to that. Merely on the ground that such a notice could have been issued even when I.P. No. 5 of 1980 was pending or prior to that, it could not be said that the present petition is barred either under Order 2, Rule 2 or Section 11, C.P.C. In order to invoke those principles, this act of insolvency must have been in existence or available prior to the filing of that petition and if the act of insolvency was subsequent to the disposal of I.P. No. 5 of 1980, then that could not have been taken as a ground in the earlier petition in order to operate as a bar under those provisions. As already stated, that petition was disposed of on 20-11-1981 and the present act of insolvency came in only on the 30th of May, 1983 when the debtor defaulted in the payment of the money in pursuance of the insolvency notice issued on 30-4-1983. 6. It was next contended by learned Counsel that the affidavit in support of the insolvency notice No. 15 of 1983 was filed by the husband of the respondent and that the notice issued is therefore not valid. Learned Counsel was not able to produce any rule or law requiring the creditor herself to file the affidavit. Learned Counsel drew our attention to Mews' Digest of English Case Law (Vol. II), Page 162 where it was noted that a petitioning creditor in a bankruptcy case must personally attend the hearing and, none-the-less from the fact that the debt is a judgment debt, for the Court may wish to go behind the judgment or satisfy itself on the bona fides of the petitioner. We are unable to understand how this passage, in any way, supports the appellant's contention in this case. There is no dispute that the amount was due under the decree. There was no need for the petitioning creditor to go into the witness-box to prove the debt. Nor had the Court asked her to come and give evidence. If the appellant had filed a petition requiring the creditor to be examined, different question may arise, but in this case, on the ground that the affidavit was filed by the husband of the creditor, the proceedings could not be held to be invalid or illegal. 7. It was lastly contended by learned Counsel that the decree in O.S. No. 3821 of 1975 is inexecutable and that it is open to the debtor to go behind the decree. We are unable to see how this contention is open to the appellant at all. The decree had become final. In fact, he was all along aware of that and he never took steps to set aside the decree on the ground that it was, in any way, illegal or unsustainable. We are unable to see how this contention is open to the appellant at all. The decree had become final. In fact, he was all along aware of that and he never took steps to set aside the decree on the ground that it was, in any way, illegal or unsustainable. On the other hand we find that the Division Bench judgment in Daljit Kishan v. Nihalchand Jethaji reported judgment of Bombay High Court dt.19-7-1972 clearly holds that an insolvency notice cannot be challenged by the judgment-debtor on the ground that the decree on which it is based was not validly and properly passed against him. The power of the insolvency Court at this stage of considering the validity of the insolvency notice is confined to determining whether any amount is due under the decree to the creditor and it would not be open to the insolvency Court at this stage to permit the debtor to challenge the very validity of the decree. 8. No other point has been raised on behalf of the appellant. 9. In the result, both the appeals fail and they are dismissed. But, there will be no orders as to costs.