Skip to content


In Re: Chinnappa Goundan Alias Karuppanna Goundan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)2MLJ148
AppellantIn Re: Chinnappa Goundan Alias Karuppanna Goundan
Cases ReferredRajagopala Iyer v. Ramanujachariar
Excerpt:
- .....1942 for executing the decree by sale of the mortgaged property. the appellant then applied to the debt conciliation board, karur, for scaling down the decree and applied to the district munsiff for stay under section 25 of the debt conciliation act. the district munsiff stayed the sale but on 30th october, 1942, this application was rejected under section 7 of the act by the debt conciliation board. sometime later, the respondent again took steps to execute his decree whereupon the appellant filed a fresh application before the district munsiff in e.a. no. 300 of 1943 for stay of execution on the ground that he had filed a second application before the debt conciliation board and that the court should not proceed with the proceedings in execution before the debt conciliation board.....
Judgment:

Govinda Menon, J.

1. This is an appeal against the decision of the District Judge of Trichinopoly in A.S. No. 265 of 1944 on his file.

2. The appellant was the first defendant in O.S. No. 219 of 1940 on the file of the District Munsiff's Court of Karur wherein there were preliminary and final decrees on foot of a mortgage. The final decree was passed on 1st September, 1941 and the same was assigned to the respondent on nth November, 1941, who filed E. P. No. 58 of 1942 for executing the decree by sale of the mortgaged property. The appellant then applied to the Debt Conciliation Board, Karur, for scaling down the decree and applied to the District Munsiff for stay under Section 25 of the Debt Conciliation Act. The District Munsiff stayed the sale but on 30th October, 1942, this application was rejected under Section 7 of the Act by the Debt Conciliation Board. Sometime later, the respondent again took steps to execute his decree whereupon the appellant filed a fresh application before the District Munsiff in E.A. No. 300 of 1943 for stay of execution on the ground that he had filed a second application before the Debt Conciliation Board and that the Court should not proceed with the proceedings in execution before the Debt Conciliation Board disposed of the matter. This application was dismissed by the District Munsiff on the 16th June, 1943, on the ground that the application before the Debt Conciliation Board was a second petition which was not maintainable and therefore that Court declined to stay the execution proceedings. C.R.P. No. 771 of 1943 arose out of the dismissal of E.A. No. 300 of 1943 when; Horwill, J., passed the following order:

The order of the District Munsiff was right on the material available, though a typed paper now put in my hand suggests that the petition was in fact dismissed under Section 7 of the Madras Debt Conciliation Act. I do not therefore feel justified in interfering in revision.

In the meanwhile, proceedings for the sale of the property went on and the properties were sold and purchased by the decree-holder himself. E.A. No. 345 of 1943 was thereafter filed by the appellant first defendant for setting aside the sale under Section 47 of the Code of Civil Procedure on the ground that the Court had no jurisdiction to proceed with the sale on account of the pendency of an application before the Debt Conciliation Board. The lower appellate Court has held that a second application before the Debt Conciliation Board is not maintainable and therefore there can only be one stay in respect of a debt and has refused to set aside the sale. It is clear from Ex. P-1 that the dismissal of D.C. No. 77 of 1942 by the Debt Conciliation Board (Ex. P-3) was under Section 7 of the Act, the second clause of which is to the effect that the rejection of an application under this section shall not preclude the applicant from making a fresh application; and in view of this provision the dismissal by the District Munsiff of the application for stay on 16th June, 1943, was illegal and without jurisdiction. It follows that the sale held when a valid application was pending before the Debt Conciliation Board was void and inoperative. When an application is pending before a Debt Conciliation Board, the Court before which an execution petition regarding the same matter is pending is ipso facto deprived of the jurisdiction to proceed further as the prohibition is statutory. Moreover, the fact that the Court did not know of the existence of the application and was therefore unaware of the fact that it had no jurisdiction to proceed does not clothe it with jurisdiction in regard to subsequent proceedings. This is clear from the decision of Horwill, J., in Sitarama Reddi v. Bilehal Somappa : AIR1943Mad549 which has been followed subsequently in Achutaramayya v. Thimmaraju Ramamma (1944) 1 M.L.J. 298 and affirmed by a Bench in Rathnasabapathy Iyer v. Subramania Pillai : AIR1945Mad358 . In this view, the sale is entirely void as the Court had no jurisdiction to sell the property and its action in so doing must be regarded as a nullity. That even a sale which is null and void can be set aside is laid down by a Full Bench in Rajagopala Iyer v. Ramanujachariar (1923) 46 M.L.J. 104 : I.L.R. Mad. 288 (F.B.).

3. But it is argued by Mr. L.A. Gopalakrishna Aiyar for the respondent that the dismissal of C.R.P. No. 771 of 1943 by this Court prevents the appellant from questioning the validity of the sale at a later stage. I do not agree. All that Horwill, J., decided in C.R.P. No. 771 was that there were no materials placed before the Court of first instance to show that a second petition before the Debt Conciliation Board was one provided for under Section 7 of the Act. But the present appeal arises out of an application to set aside the void sale and it cannot be said that the question of the voidability of the sale was ever the subject-matter of C.R.P. No. 771 of 1943.

4. Along with the civil miscellaneous second appeal, C.M.P. No. 1866 of 1947 has been filed by the respondent to admit as evidence some documents produced in this Court. One of them is an assignment of all his rights in the property by the present appellant to a third party sometime before his first application before the Debt Conciliation Board was made and the other is a judgment of the District Munsiff of Karur in O.S. No. 214 of 1946 to show that the judgment-debtor had no interest in the property and therefore his application to the Debt Conciliation Board was made by a person without any locus standi. No valid grounds have been shown as to why the sale deed which is a registered one was not filed before the trial Court and I am therefore not inclined to entertain this petition for admitting additional evidence. But it is seen from the judgment of the learned District Munsiff that though the question as regards the appellant's locus standi was raised before him in the affidavit in E.A. No. 354 of 1943, he did not give any consideration to that aspect of the case, because according to him the application before the Debt Conciliation Board had already been dismissed. As I have already held that the trial Court acted without jurisdiction in proceeding with the sale owing to the fact that the second application was a proper one, the reasons given by the lower Court for refusing to set aside the sales are unsound and unacceptable. But the respondent complains that he was given no opportunity to put forward his case regarding the want of status of the appellant to put in the stay application, as he had already parted with all his rights in the property. I think in view of the course the petition has taken in both the lower Courts it is just that he should be given an opportunity to adduce evidence on that aspect of the case.

5. The Civil Miscellaneous Second Appeal is therefore allowed, the orders of the lower Courts are set aside and E.A. No. 354 of 1943 is remanded to the District Munsiff for disposal according to law. The parties are entitled to adduce fresh evidence, if so advised. Costs of these proceedings will abide and follow the result.

6. C.M.P. No. 1866 of 1947.--In view of my observations contained in the judgment just delivered, it is unnecessary to pass any orders on this petition. The petitioner is entitled to take back the documents and file them before the District Munsiff in the future proceedings, if he is so advised.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //