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Thotapalli Dharmayya Vs. Nelabarla Yanadi Reddy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad731; (1942)2MLJ585
AppellantThotapalli Dharmayya
RespondentNelabarla Yanadi Reddy
Excerpt:
.....under order 21, rule 90, civil procedure code, was dismissed by the trial court under a misapprehension of the facts, the error does not seem to have been clearly put before the district judge at the time of the arguments in the appeal although it was clearly stated in the appeal memorandum. i am reluctantly constrained to hold that the selling court was obliged to stay the second sale on being satisfied that the debtor was an agriculturist and that the holding of the sale in disobedience to the provisions of section 20 constituted a material irregularity which had the effect of depriving the debtor of the benefits of the act which would have accrued had the stay been granted so as to give him time to file an application under section 19. 4. it follows therefore that the sale has to be..........down to the decree-holder. the trial court, under the impression that there had been an earlier stay application under section 20 and that it was not followed by any application under section 19 to scale down the decree, refused to set aside the second sale on the ground of material irregularity. the same view was taken by the learned district judge.3. it seems to me perfectly plain that the conduct of the petitioner has been reprehensible in the extreme and that his tactics have been purely obstructive and have not indicated any desire to use the procedure laid down in the act in the way in which it is intended. having got the sale set aside under section 23 he should have taken steps to get the debt scaled down. even if he had been unable to do so before the second sale proceeding.....
Judgment:

Wadsworth, J.

1. The petitioner was the judgment-debtor under a decree in a suit of 1935. On 17th March, 1938, his property was sold in execution of the decree. He took no action in the matter of the sale until after Madras Act IV of 1938 came into force when on 28th April, 1938 (not 1939 as the trial Court wrongly states) he filed an application under Section 23 of that Act and got the sale set aside. Both the Courts below, misled by the error of date in the trial Court's judgment, have assumed that this application under Section 23 was preceded by an application for stay under Section 20. That is not the case. In the Memorandum of Appeal to the appellate Court this error was clearly pointed out, but it does not appear to have been impressed upon the learned Judge at the time of the arguments.

2. After the appellant had got the sale set aside in April, 1938, he took no action at all until the decree-holder, a year later, once more brought the property to sale. Then on the 25th April, 1939, the judgment-debtor filed an application for stay under Section 20. 'While this application was pending he had ample time to move the Court under Section 19, but he did not do so. Eventually the executing Court required the applicant to pay costs as a condition precedent to the grant of the stay and the stay was refused for non-payment of the costs. On the same day the sale was held and the property knocked down to the decree-holder. The trial Court, under the impression that there had been an earlier stay application under Section 20 and that it was not followed by any application under Section 19 to scale down the decree, refused to set aside the second sale on the ground of material irregularity. The same view was taken by the learned District Judge.

3. It seems to me perfectly plain that the conduct of the petitioner has been reprehensible in the extreme and that his tactics have been purely obstructive and have not indicated any desire to use the procedure laid down in the Act in the way in which it is intended. Having got the sale set aside under Section 23 he should have taken steps to get the debt scaled down. Even if he had been unable to do so before the second sale proceeding was started he had ample time to file a petition under Section 19 while his application under Section 20 was pending. Moreover when the application under Order 21, Rule 90, Civil Procedure Code, was dismissed by the trial Court under a misapprehension of the facts, the error does not seem to have been clearly put before the District Judge at the time of the arguments in the appeal although it was clearly stated in the appeal memorandum. Unfortunately Section 20 of Act IV does not allow the Court a discretion to refuse a stay in a case in which the conduct of the debtor has been obstructive, nor does it contain any provision for imposing conditions for the grant of stay. Section 23 contains no time limit within which the setting aside of the sale has to be followed by an application under Section 19. There is nothing in the Act to prevent a debtor from behaving as this debtor has behaved, namely waiting to the last possible minute and then filing a stay application just at the time when the second sale is being held. I am reluctantly constrained to hold that the selling Court was obliged to stay the second sale on being satisfied that the debtor was an agriculturist and that the holding of the sale in disobedience to the provisions of Section 20 constituted a material irregularity which had the effect of depriving the debtor of the benefits of the Act which would have accrued had the stay been granted so as to give him time to file an application under Section 19.

4. It follows therefore that the sale has to be set aside. As the conduct of the debtor has been deplorable and the protraction of the litigation has been almost entirely due to his dilatory tactics, I make no order as to costs in any of the Courts.


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