JUDGMENT Abdul Hadi, J. 1. This Insolvency petition by the petitioning creditor, a Private Limited Company incorporated in Singapore and having its registered office at Singapore, is under Section 9 (2) of the Presidency Towns Insolvency Act for adjudicating the four respondents-debtors as insolvents. 2. The petitioning creditor obtained an ex-parte decree Ex.P-5 dated 24.7.1984 for Rs. 23,09,95112 in C.S.No. 232 of 1983 on the file of this Court against the 1st defendant-firm, Ananthakrishnan & Company and defendants 2 to 6 therein. The second defendant in the suit A.B. Ananthakrishnan who was the managing partner of the said firm died pending the suit and the 3rd defendant was recognised as his legal representative and respondents 4 to 6 were brought on record as the other legal representatives of the deceased second defendant as well as partners of the first defendant firm, as per order in Application No. 1462 of 1982. The said defendants 3 to 6 are the respondents in the present Insolvency petition. After the said ex-parte decree, Application No. 2362 of 1984 was filed by the respondents herein for setting aside the said decree. But the said application was dismissed by an order dated 31.7.1984 (Ex.P-6). In the said order dated 31.7.1984 the learned Judge held as follows: I am not at all satisfied with the bona fides of the applicants. As pointed out earlier, there is no explanation for the non-appearance of the learned Counsel for the defendants. It was also observed therein that the counsel for the defendants made representation on 4.4.1984 that he would file the written statement on 10.4.1984, but that it was not filed, that when the suit was taken up for trial on 29.6.1984 the defendants and their counsel were absent, that the defendants were then set ex-parte and the case was posted for evidence on 23.7.1984, when also neither the defendants nor their counsel were present and that on 24.7.1984 ex-parte judgment was pronounced. No further appeal was filed and so the said decree had become final. 3. Subsequently, the petitioning creditor filed Insolvency Notice No. 1 of 1986 (Ex.A-7); it was served on the respondents in January, 1986 and "subsequently, the four respondents filed four different applications, namely, Application Nos. No further appeal was filed and so the said decree had become final. 3. Subsequently, the petitioning creditor filed Insolvency Notice No. 1 of 1986 (Ex.A-7); it was served on the respondents in January, 1986 and "subsequently, the four respondents filed four different applications, namely, Application Nos. 66 to 69 of 1986 for setting aside the Insolvency Notice and all of them were dismissed on 1.9.1986 by the following order: Since the applicants and their counsel were called absent on 18th and 25th August, the matter was directed to be posted today. Today also both the applicants and their counsel were called absent/The respondent was present. Petitions are dismissed for default. There was no further appeal there from. So, subsequently this insolvency petition has been filed; P.W-1, the power agent of the petitioner was examined on the side of the petitioner and R.W-1 third respondent was examined on the side of the respondents. Though R.W-1 stated about the alleged counter claim of the respondents against the petitioner, he admitted that no suit had been filed to recover the alleged counter claim. He also identified. Ex.P-2 letter dated 3.8.1981 signed by his above said father Ananthakrishnan, who confirmed that the said letter admitted that the outstanding amount due by the first defendant-firm to the petitioner as on 31.7.1981 was Rs. 20,02,356-32ps. 4. The examination of R.W-1 was over on 10.10.1988 itself before S.T. Ramalingam, J. Then the LP. was posted for argument before me in or about August, 1989 and the petitioner's counsel also finished his arguments. Then the respondents changed their counsel and filed A.No.263 of 1989 for recalling R.W-1 for further examination. It was allowed by me on payment of Rs. 500. Then R.W-1 was examined on 11.9.1989 and through him Ex.R-76 the partnership deed of the above said first defendant firm Ananthakrishnan & Company was marked. Further Ex.R-77 the Income-tax Assessment order of the said firm for the year 1977-78 was also marked. He (R.W-1) deposed that he was filing "an Assessment" on behalf of the petitioning creditor and Ex.R-79 dated 173.1983 the assessment order of the petitioning creditor for the year 1980-81. As per Ex.R-79 the total tax payable on behalf of the petitioning creditor was Rs. 11,87,101. He deposed that out of the said sum, a sum of Rs. 4,92,441 was paid by him. As per Ex.R-79 the total tax payable on behalf of the petitioning creditor was Rs. 11,87,101. He deposed that out of the said sum, a sum of Rs. 4,92,441 was paid by him. He further deposed that Balakrishnan the 3rd respondent herein was born on 24.3.1963 as per the birth certificate Ex.R-80. He however admitted in his cross examination that neither public notice was given (to the effect that the above said third respondent had attained majority) nor a notice to the Registrar of Firms. Further, he admitted that regarding the above said payment of Rs. 4,92,441 he did not give notice demanding the above said sum from the petitioning creditor. 5. After the above said examination of R.W-1, the Insolvency petition was once again posted for argument. Since already the petitioner's counsel had argued even before recalling of R.W-1, the petitioner's counsel submitted that the respondents' counsel could make his submission and, if necessary, he would reply subsequently. Accordingly, the respondents' counsel argued on two occasions. Subsequently, since the matter was' prolonging, I requested both the counsel to file written submission of their argument, in order to save further time in the Court. Then both the counsel submitted their written arguments in addition to their oral submissions made already. 6. At the outset, the respondents' counsel began to question the validity of the decree against the respondents herein on the ground that respondents 1 and 4 were not partners of the above said firm at all as shown by Ex.R.76 and 77 and that the third respondent was only a minor at the relevant time (as shown under Ex.R-80) admitted to the benefits of the partnership and that, hence, they were not liable at all under the decree and could not be adjudicated as insolvents in this insolvency petition. Further, he began to submit that the decree did not take into account the counter claim of the respondents in the above suit, namely, the income-tax amount paid by the above said 1st defendant firm on behalf of the petitioning creditor. But, since the above said decree had already become final, I put the. question to the respondents' counsel whether in this insolvency petition, the respondents could challenge the correctness or validity of the above said decree. But, since the above said decree had already become final, I put the. question to the respondents' counsel whether in this insolvency petition, the respondents could challenge the correctness or validity of the above said decree. For that, the learned Counsel for the respondents cited a decision reported in Re: In the matter of Dulal Chand Auddy A.I.R. 1975 Cal.341 and urged that the Insolvency Court could go behind the decree. But the learned Judge in the said decision observed only as follows: It was further held that the Court of Bankruptcy could not as a matter of course inquire into the validity of a judgment debt, but only when there was evidence that the judgment had been obtained by fraud or collusion or that there had been some miscarriage of justice. Therefore, it is true that in an appropriate case on proper complaint being made to the court of bankruptcy making an adjudication this Court is entitled to go behind the decree and to determine whether there was a genuine debt or a valid decree or not even though in a . previous proceedings that decree had been passed without contest or had been passed upon contest overruling the opposition of the judgment debtor. There is no question of res judicata or estoppel preventing the court adjudicating to go into the facts afresh. But, as has been mentioned before by the Master of Rolls there must strong grounds, and sufficient proof in support of the allegations of fraud, otherwise if this power is not used with caution any judgment debtor can defeat the scheme of the Insolvency Act and try to impeach the decree by indirect methods not contemplated by law. In view of the nature of allegations made by the respondent I am of the opinion that the facts alleged, are not of such nature which would entitle me to exercise my discretion and go behind the decree and direct factual examination as to the validity of the decree. (emphasis mine) So, even according to the decision in the matter of Dulal Chand Auddy , unless there was strong ground and sufficient proof of fraud, the decree already obtained cannot be challenged in the Insolvency Court. On facts of that case also, the learned Judge of the Calcutta High Court did not exercise his discretion to go behind the decree. 7. On facts of that case also, the learned Judge of the Calcutta High Court did not exercise his discretion to go behind the decree. 7. In the decision in J.P. Tiwari v. M/s. Bhimraj Harlalka A.I.R. 1959 Bom.375 also, it was held as follows: Undoubtedly - and we wish to make it clear - it is discretionary with the court to go behind the decree and it would be very rarefy that the Insolvency Court would exercise that discretion. This Court has also held in D. Chokalingam Chettiar v. T.S.P.L.P. Palaniappa Chettiar (1938)2 M.L.J. 585 : A.I.R. 1938 Mad.947, that the Insolvency Court will not and should not ordinarily go behind the decree unless it has reason to believe that the decree was brought about by fraud or collusion or is unjust. In this back ground of the law, the defence taken may be seen. In paragraph-5 of the counter, it is stated that the first respondent was never a partner in the first defendant firm and that therefore, the decree against her is a nullity. In view of what is contained in Ex.R-76, the partnership deed dated 18.3.1976 and Ex.R-77, the firm's assessment order for the year ending with 31.3.1977, it is clear that the first respondent was not a partner, she was only impleaded as legal representative of the deceased partner, the second defendant in the suit. Insolvency is essentially a proceeding in person am and until there is a personal decree under Section 52, C.P.C., a decree against a person as the legal representative of another does not make him liable to adjudication-vide P.A.A. Chettyar Firm v. T.R.M. Chettyar Firm A.I.R. 1934 Rang. 162 and Nagasubramania v. Narasimachariar A.I.R.1927 Mad.922. There is no such personal decree against the 1st respondent herein. Hence, the first respondent cannot be adjudicated as insolvent in this Insolvency Petition. Likewise, it is found from Ex.R.76 that the 4th respondent was a partner only upto 1.4.1975. But the cause of action for the suit arose only subsequently from 1977 onwards. So, he is also not a debtor so far as this proceeding is concerned and he cannot be adjudicated as insolvent in this insolvency petition. 8. But, so far as the 3rd respondent is concerned, he was minor admitted to the benefits of partnership in the above said firm. So, he is also not a debtor so far as this proceeding is concerned and he cannot be adjudicated as insolvent in this insolvency petition. 8. But, so far as the 3rd respondent is concerned, he was minor admitted to the benefits of partnership in the above said firm. But, after attaining majority on 24.3.1981 he did not give public notice that he has elected to become or not to become a partner in the firm. So, as per Section 30 (5) proviso of the Partnership Act, he shall be the partner in the firm on the expiry of six months from the date of his attaining majority. At any rate, even a minor admitted to the benefits of the partnership is liable to the extent of his share in the partnership. So, he can very well be called a debtor. 9. Another defence taken up by the respondents is that the counter claim was not taken into consideration by this Court when it passed the above said decree. But, as stated above, R.W-1 who spoke about the counter claim only deposed that the first defendant firm paid a sum of Rs. 4,92,441 only. Though to a question put to him - "You have paid more than that" he answered 'Yes', there is no specific evidence as to how much he paid more than the above said sum of Rs. 4,92,441. Further, with reference to the above said counter claim he also admitted in the cross examination that he did not send any notice to the petitioning creditor demanding any amount by way of counter claim. Even assuming the above said sum of Rs. 4,92,441 has to be adjusted towards the above said decree amount of Rs. 23,09,951-12 Ps. yet, a huge amount is still due to the petitioning creditor. 10. In the circumstances, therefore, there is no difficulty in adjudicating respondents 2 and 3 as insolvents. 11. Learned Counsel for the respondents made certain other submissions as follows: C.S.No. 232 of 1983 being a suit for accounts, only preliminary decree should be passed initially and not a final decree for a particular amount, before accounts were taken. This submission has no merit. First of all, I do not think, this can be a ground for going behind the above said decree. This submission has no merit. First of all, I do not think, this can be a ground for going behind the above said decree. That apart, a Bench of this Court in Valliyappa Chetty v. Vellayappa Chetty 59 M.L.J. 316 had held that it was not imperative to pass a preliminary decree and that the court can dispense with it where the facts are simple and taking of accounts will only lengthen the proceedings (Vide also Order 20, Rule 16, C.P.C. and Palaniappa v. Ramanathan A.I.R. 1939 Mad.671 and Purushotham Hondas v. Amruth Ghee Co. In the present case, the 1st defendant firm has admitted its liability by its letter dated 3.8.1981 (Ex.P2=Ex.R-75) and the court-fee also has been paid to that effect. 12. Another submission was made by the learned Counsel for the respondents that the decree has been passed for Rs. 22,09,951-12 ps. While the court-fee was paid only for Rs. 20,02,356-32. I do not think that on this ground the Insolvency Court could be urged to go behind the decree. That apart, the decree is in order, because the decree for Rs. 20,02,356-32 with interest at 6% per an-num from 2.1.1982, the date of plaint till the date of realisation is equivalent to a decree for Rs. 23,09,951-12 ps. 13. Another submission of the respondents' counsel was that the decree is not executable as no notice under Order 21, R.22, C.P.C. was given and Insolvency Notice was filed after two years from the date of the decree. But a Division Bench of this Court has held, by Judgment dated 7.3.19.87 in O.S.A.No. 2 of 1984 and 26 of 1985 that such a contention has no merit. 14. Another submission of the learned Counsel for the respondents was that the above said application in A.No. 1462 of 1982 for bringing the legal representatives of the deceased 2nd defendant was out of time, it having been not filed within three months from 22.1.1982, the date of the death of the said deceased/But, here, it must be noted that the said application was filed not only under Order 22, R.4, but also under Order 1, R.10, C.P.C. for impleading the relevant parties as partners of the first defendant-firm. Accordingly, order was passed. Accordingly, order was passed. Thus, the respondents, besides being the legal representatives of the 2nd defendant, were also made parties as surviving partners under Order 1, R.10, C.P.C. In this connection, the observation of the Supreme Court in Bhagwan Swaroop v. Moolchand should also be noted. It is to the effect that the laws of procedure were devised for advancing justice and not for impeding the same and the Code is designed only to facilitate justice. 15. Lastly, the learned Counsel for the respondents also submitted that the abovesaid Application (A.No. 1462 of 1982) itself was not in order, since it was filed when the suit itself was not numbered. I do not think that this ground also could be urged to persuade the Court to go behind the decree. At any rate, filing of the application in un-numbered suits are not uncommon and there is no irregularity in this regard. 16. In the circumstances, I hereby pass an order adjudicating respondents 2 and 3 alone as insolvents and allow the Insolvency Petition against them, with costs, which shall come out of then assets. The Insolvency Petition is dismissed as against respondents 1 and 4 herein.