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Govindappa and anr. Vs. K. Naranappa - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 289 of 1949-50
Judge
Reported inAIR1950Kant43; AIR1950Mys43
ActsDebt Law; Mysore Debt Conciliation Act, 1937 - Sections 4, 5, 6, 7, 9, 17, 24, 25 and 26
AppellantGovindappa and anr.
RespondentK. Naranappa
Advocates:R.V. Sreenivasaiya, Adv.
Excerpt:
the case debated over the maintainability of a fresh application under section 4 of the mysore debt conciliation act (vi[6] of 1937), wherein an earlier application filed in respect of the same debt under the same section had been dismissed under section 9 or section 17 of the act - the court ruled that in such circumstances, fresh application under section 4 of the act was not maintainable in respect of the same debt. - karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 21 (1) & form 7a: [anand byrareddy, j] right of a beneficiary under a will claim for occupancy rights by virtue of the bequest under the will grant of occupancy rights challenge to finding of the tribunal that petitioner was not a full brother of the deceased tenant transfer of agricultural land with..........no. 488 of 48.49 on the file of the munsiff, sagar who filed i.a. no. ii under section 26, mysore debt conciliation act (act vi [6] of 1937) claiming stay of execution proceedings on the ground that they had preferred an application in d.c. no. 10 of 49.50 before the debt conciliation board for conciliation of the debt involved in the execution petition. the decree-holder maintained that the judgment-debtors are not entitled to claim the suspension of the execution proceedings as the present application before the debt conciliation board was the fourth of its kind in relation to the same debt and that it is neither a valid application nor otherwise maintainable according to law. the learned munsiff refused to stay the execution proceedings.2. the decree-holder obtained the decree in.....
Judgment:
ORDER

1. The petitioners are judgment debtors 5(a) and 5(b) in Ex. case No. 488 of 48.49 on the file of the Munsiff, Sagar who filed I.A. No. II under Section 26, Mysore Debt Conciliation Act (Act VI [6] of 1937) claiming stay of execution proceedings on the ground that they had preferred an application in D.C. No. 10 of 49.50 before the Debt Conciliation Board for conciliation of the debt involved in the execution petition. The decree-holder maintained that the judgment-debtors are not entitled to claim the suspension of the execution proceedings as the present application before the Debt Conciliation Board was the fourth of its kind in relation to the same debt and that it is neither a valid application nor otherwise maintainable according to law. The learned Munsiff refused to stay the execution proceedings.

2. The decree-holder obtained the decree in O.S. No. 264 of 28-29 on 15-7-1931, more than 18 years ago, and he has not recovered the debt as the judgment-debtors obtained stay repeatedly by filing a number of applications before the Debt Conciliation Board. No attempt is made to settle the debt. O.C. No. 1 of 44-45 was dismissed on 16-3-1945, O.C. No. 6 of 45 46 was dismissed on 17-1-46 and D.C. No. 19 of 46-47 which is admittedly made by the present judgment-debtors is not pending before the Debt Conciliation Board.

3. Sri R.V. Sreenivasaiya on behalf of the petitioners urges that in view of the present pending application D.C. No. 10 of 49-50, it is mandatory under Section 26, Debt Conciliation Act, to stay further proceedings and that the judgment-debtors are not precluded by the provisions of the Act to make more than one application. Section 26, Debt Conciliation Act runs as follows:

'When an application has been made to a board under Section 4, any suit or other proceedings then pending before a Civil Court in respect of any debt for the settlement of which application has been made shall be suspended until the Board has dismissed the application.'

The debtor is entitled to make an application for settlement of the debt with the creditor under Section 4. Section 5 provides certain formalities to be observed and Section 6 mentions the particulars to be stated in the application. Under Section 7, and application may be rejected if it does not comply with the requirements contained in Sections 5 and 6 and it is also provided that the rejection of the application under this section shall not preclude the applicant from making a fresh application. Sections 9 and 17 empower the Board to make an order dismissing the application; but neither section makes a reservation for filing a fresh application; the persons interested may make an application to the Board under Section 24 for review of any order passed by it.

4. In the general scheme of the Act, as discussed above, a second application is not precluded if the previous application is invalid and a review is provided of the orders once made by the Board. In the present case, it is obvious that the previous applications to the Debt Conciliation Board were not rejected under Section 7 nor is the present application D.C. No. 10 of 49.50 one for review under Section 24.

5. The point for consideration is whether the debtors could make successive applications so as to postpone indefinitely the execution of the decree and impede the realisation of the debt. Section 26 provides that when an application has been made to the Board, under Section 4 any suit or other proceeding then pending for the settlement of which application has been made shall not be proceeded with until the Board has dismissed the application. Neither Section 9 nor Section 17 does provide for filing further applications when the previous applications are dismissed. It follows, therefore, that the debtor cannot make successive valid applications. The intention of the Legislature is to create facility for conciliation by providing an opportunity and when that concession is exhausted, the debtor cannot ask for stay of proceedings repeatedly. Under Section 26 of the Act, the debtor therefore cannot have a stay more than once. This view is supported by the decision in Natesa Ayyar v. Singaravelu Pillai : (1940)2MLJ923 , where Burn J. lays down as follows:

'The meaning of the provision in part II of Section 7 is that if an application has to be rejected merely for want of some formality, the debtor should not be precluded from bringing a fresh application. The absence of any provision for a fresh application with regard to the same debt when the application has been dismissed on the merits indicates that in such cases the Legislature did not contemplate a fresh application by the same debtor. The presence of the provision in Section 7 by which an applicant can make a fresh application if his application has been rejected on formal grounds and the absence of any similar provision in Section 9 conclusively indicates that the Legislature did not intend debtors to be allowed to make more than one effective application for the conciliation of a particular debt under the provisions of the Act and inasmuch as the Act does not contemplate successive petitions by the same debtor in respect of the same debt a judgment-debtor is not entitled to obtain a stay under Section 25 in any individual suit or proceeding more than once.'

(Section 25, Madras Debt Conciliation Act, is similar to Section 26, Mysore Debt Conciliation Act).

6. The order of the Munsiff must therefore be upheld. This petition fails and is dismissed.

7. Petition dismissed


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