Judgment : 1. This is an Application to set aside the Insolvency Notice No.26 of, 2006 filed under Section 9(2) of the Presidency Towns Insolvency Act, III of 1909. 2. Mr. V. Srinivasan, learned counsel appearing for the applicants/judgment-debtors, against whom the insolvency proceedings were taken, submitted that merely because a notice after decree was sent by the respondent/petitioning creditor to the applicants/judgment-debtors, it cannot be found that act of insolvency was committed by them. It was further submitted that all the ingredients under Section 9(2) of the Presidency Towns Insolvency Act, 1909 should be established. 3. According to that Section, (i) decree should have been reached finality; (ii) the execution of such decree should not have been stayed. Of course, in this case the decree has reached finality and there is no dispute over the same. 4. The learned counsel for the applicants/judgment-debtors submitted that no Execution Petition is so far been filed against them and therefore the question of non-staying of the execution of the decree has not happened and therefore, there is no compliance of one of the ingredients of Section 9(2) of the Act. 5. Mr. T. Srikanth, learned counsel appearing for the respondent/ petitioning-creditor submitted that under Section 9(5) of the same Act, the Insolvency Notice issued by the Creditor to the Debtors indicating the act of insolvency can be set aside only on the ground of there being: (i) a counter claim by the debtors; (ii) set off claim by the debtors and (iii) question of jurisdiction of the Court. 6. It was further argued that since all the above three grounds are not in existence, such notice of Insolvency cannot be set aside. To put it shortly, according to the learned counsel for the respondent/petitioning-creditor, notice of Insolvency could be set aside only as per the grounds set out in Section 9(5) of the said Act. 7. The above view is not acceptable, because nothing was shown on the part of the respondent/petitioning-creditor that Section 9(2) is controlled by Section 9(5) of the Act. It has been fairly conceded that they are independent provisions, while Section 9(5) is an enabling provision to set aside the Insolvency proceedings, Section 9(2) provides certain checks upon the creditor. Those checks are: (i) The decree becoming final; (ii) the executability of the decree, that is to say, there can be the capability of decree being executed. It has been fairly conceded that they are independent provisions, while Section 9(5) is an enabling provision to set aside the Insolvency proceedings, Section 9(2) provides certain checks upon the creditor. Those checks are: (i) The decree becoming final; (ii) the executability of the decree, that is to say, there can be the capability of decree being executed. There are two modes in paralysing the decree. One is preference of Appeal by the judgment-debtor and pending Appeal there can be stay, of execution of the decree. The other is filing a stay Application in the execution Court immediately after the Execution Petition is filed by the decree-holder. 8. The learned counsel for the respondent/petitioning-creditor relied upon Pravin Kumar v. R. Sivagnanam, 1988 (2) LW 191, wherein a decree was obtained both for possession and mesne profits and so far as possession is concerned there was a stay by the Apex Court. It was held by the Division Bench of this Court that pendency of Appeal in the Supreme Court will not indicate that there is no finality of the decree. It was also held that a stay in respect of possession alone by the Apex Court cannot be misconstrued as that there was a stay against the claim of mesne profits also. Therefore, it was held that no ground was in existence under Section 9(2) of the Act to set aside the Insolvency Notice. 9. As mentioned earlier, Section 9(5) is an enabling provision in favour of the judgment-debtor, wherein certain grounds were mentioned in order to set aside the Insolvency Notice; whereas Section 9(2) provides certain checks upon the decree-holder while opposing Applications of similar nature. One such check is that the execution of the decree should not have been stayed and the other is decree reaching the finality. Among the two, the first ingredient is relied on by the judgment-debtors in this case. Any decree-holder may not create an adverse situation for himself in getting the Execution proceedings stayed. Therefore, he may rightly choose not filing the Execution Petition. No one can compel the creditor that he should necessarily file Execution Petition in order to enable the judgment-debtor to get a stay. As found supra, unlike Section 9(5), Section 9(2) is not an enabling provision for the judgment-debtor. 10. Therefore, he may rightly choose not filing the Execution Petition. No one can compel the creditor that he should necessarily file Execution Petition in order to enable the judgment-debtor to get a stay. As found supra, unlike Section 9(5), Section 9(2) is not an enabling provision for the judgment-debtor. 10. For all these reasons, the non filing of Execution Petition by the respondent/petitioning-creditor may not be taken as a ground for setting aside the Insolvency Notice, by mentioning that had the creditor filed the Execution Petition, there could have been prospective chance for the applicants/judgment-debtors to obtain a stay thereof. Such kind of reading of Section 9(2) of the Act is against the intention of the Legislature; because at page 90 of the Mulla on The Law of Insolvency in India, Fourth Edition 1997 by M.S. Sathya Narayan , it has been mentioned as follows: “Subsequent to the State Amendments to the Presidency Towns Insolvency Act and the Provincial Insolvency Act under the title Bombay Amendment Act, 1939 (Bombay Act No.XV of 1939). amending Sections 9 and 6 of the Acts respectively incorporating provisions regarding Insolvency Notice, a Central Amendment was proposed to be introduced to the Acts on the basis of recommendations put forth by the Law Commission in its Third Report on the Limitation Act. The recommendations were particularly in the form of solutions to effectively execute simple money decrees, which otherwise had become very difficult. Thus on the lines of State Amendment made to the Presidency Town Insolvency Act and the Provincial Town Insolvency Act the Law Commission recommended to add a new “Act of Insolvency” which was the most effective way of instilling a healthy fear in the mind of a dishonest judgment-debtor. It was therefore recommended to add that a debtor, who had not complied with the insolvency notice served on him by a cred itor, who had obtained a decree or order against him for payment of money, within a period specified in the notice, he would be adjudicated insolvent .” 11. Further, it is to be mentioned that to take advantage of the checks against the creditor as found under Section 9(2) of the Act, the debtor himself would have filed Appeal against the decree-holder and would have obtained an order of stay of operation of decree pending Appeal. Further, it is to be mentioned that to take advantage of the checks against the creditor as found under Section 9(2) of the Act, the debtor himself would have filed Appeal against the decree-holder and would have obtained an order of stay of operation of decree pending Appeal. When that act was not done by the judgment-debtors themselves, they cannot go against the tenor of the amended provision of Section 9(2) of the Act and compel the creditor to file Execution Petition so as to create a climate of getting the stay against the same. For the above reasons, I find no ground to set aside the Insolvency Notice. The Application is dismissed.