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Chinnaswami Chetty Vs. Parvathiah Chetty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad757; (1942)2MLJ589
AppellantChinnaswami Chetty
RespondentParvathiah Chetty
Cases ReferredKumaraswami v. Thiruvengadathan
Excerpt:
- - it is the trial court and trial court alone which can decide what is precisely the decree which the executing court has to execute......that the court should inquire into the executability of the execution petition and should stay execution proceedings meanwhile. this petition was dismissed on the ground that it raised the same contentions already overruled.2. a preliminary objection was taken to the revision petition on the ground that it is preferred not against the order of the 25th march overruling the objections, but against the order of the 30th june declining to reconsider the previous order. it seems to me that what the petitioner substantially seeks to get revised is the lower court's decision that his objections are invalid. if, however, he was wrong in treating the first order as a mere finding and asking for a definite decision as to the executability of the petition before coming up in revision, the.....
Judgment:

Wadsworth, J.

1. This case raises a question under Sections 19 and 20 of Madras Act IV of 1938 on rather peculiar facts. The petitioner was the judgment-debtor and when proceedings in execution were pending, he obtained an order of stay under Section 20 of Act IV in August, 1939. He did not follow up that stay order with an application under Section 19 within sixty days, as contemplated in the proviso to Section 20. Apparently, though the facts are not on record, the judgment-debtor was taking proceedings before the Debt Conciliation Board and the pendency of these proceedings was regarded as a sufficient reason for not proceeding at once under Section 19. Whatever be the reason, both parties remained inactive; the execution of the decree was abandoned and nothing was done by the judgment-debtor to get the decree scaled down until 9th September, 1940, i.e., more than a year after the stay order. This application under Section 19 was opposed by the decree-holder and on 27th September, 1940, the decree-holder filed a fresh execution petition praying for the execution of the decree, as it stood without any scaling down. We do not know what were the grounds on which the decree-holder opposed the application under Section 19, or whether he raised the contention that the application was barred, not having been preferred within sixty days of the grant of the stay under Section 20. The fact remains that on 27th November, 1940, notwithstanding the objection of the decree-holder, the decree was amended under Section 19. Thereafter, the decree-holder attempted to execute the unamended decree and an objection was taken by the judgment-debtor that by reason of the amendment under Section 19,, the only decree which could be executed was the amended decree. The executing Court passed a considered order rejecting this contention on the 25th March, 1941. On the 17th April, 1941, the judgment-debtor, apparently seeking a more formal order, prayed for the same reasons already advanced, that the Court should inquire into the executability of the execution petition and should stay execution proceedings meanwhile. This petition was dismissed on the ground that it raised the same contentions already overruled.

2. A preliminary objection was taken to the revision petition on the ground that it is preferred not against the order of the 25th March overruling the objections, but against the order of the 30th June declining to reconsider the previous order. It seems to me that what the petitioner substantially seeks to get revised is the lower Court's decision that his objections are invalid. If, however, he was wrong in treating the first order as a mere finding and asking for a definite decision as to the executability of the petition before coming up in revision, the only result would be that the revision petition would be a little belated and in the circumstances of the case, I have no doubt that the delay could properly be excused. I am therefore treating this revision petition as a petition to revise the decision in the order ' of the 25th March, 1941.

3. Turning to the merits of the order, the trial Court reads the proviso to Section 20 as containing a mandatory direction to the executing Court to execute the decree in its unamended form, notwithstanding anything which may have taken place under the Act in the interval between the passing of the stay order and the final process of execution. The proviso states:

that where within 60 days after the application for stay has been granted the judgment-debtor does not apply to the Court which passed the decree for relief under Section 19 ... the decree shall be executed as it. stands notwithstanding anything contained in this Act to the contrary.

I have no doubt that this clause was enacted with reference to the ordinary case in which a stay is obtained and nothing is done by the decree-holder before execution is sought to be taken after the 60 days period has elapsed. The words 'notwithstanding anything contained in this Act to the contrary' presumably have reference to the provisions of Section 7 which prohibit the execution of a decree against an agriculturist in so far as a decree is for an amount in excess of the sum as scaled down under Chapter II. They are not in my opinion intended to refer to circumstances such as those with which we are now confronted where the decree has in fact been amended before execution has actually taken.

4. Assuming that the proviso of Section 20 did not contemplate the present facts, it remains to be seen what is the effect of applying to the undoubted facts the procedure laid down in Section 20. The lower Court has read the words 'shall be executed as it stands' as having regard to the condition of the decree, not at the time of execution, but at the time of the stay proceedings; that is to say, the lower Court reads these words as if they were 'the decree shall be executed as it stood when the stay was ordered.' I doubt very much whether this is the correct grammatical construction of the words. In plain English, the words 'shall be executed as it stands' would, in my opinion, mean, 'shall be executed as it stands at the time of execution' and not as it stood at some anterior date. If the word 'stands' were to relate back to some anterior date,, the past tense ought to have been used. Moreover the construction placed upon these words in the lower Court involves the difficulty that the executing Court would be required to ignore any amendment of the decree which might have taken place in the trial Court in the interval between the granting of the stay and the execution of the decree, even if that amendment were an amendment passed under the Civil Procedure Code. It seems to me that the view taken by the lower Court ignores the basic principle that the executing Court cannot go behind the decree as issued by the trial Court. If the trial Court amends the decree while the execution petition is pending, the executing Court cannot, when the amendment has been brought to its notice, proceed with the execution of the decree as it stood before the amendment. It is the trial Court and trial Court alone which can decide what is precisely the decree which the executing Court has to execute.

5. On these considerations I am constrained to hold that the words 'the decree shall be executed as it stands' have reference to the frame of the decree at the time of the execution, having regard to any changes which it may have undergone in the trial Court, and not to the frame of the decree as it stood at the time of the stay order. I am fortified in this conclusion by reference to what happened in the present case. The decree-holder had notice of the application under Section 19 and he contested that application. On the strength of the decision in Kumaraswami v. Thiruvengadathan : AIR1939Mad613 . , he could presumbly have contended that the application was barred not having been filed within 60 days of the grant of the stay under Section 20. Whether he did raise such an objection or not, we do not know. There is also a possibility that some contention may have been taken based on Section 14 of the Limitation Act with reference to the proceedings alleged to have taken place before the Debt Conciliation Board. That however is only a conjecture. We do know that the decree-holder objected to the amendment of the decree under Section 19 and that his objection was overruled. In my opinion it is no longer open to him to urge before the executing Court that the decree to be executed is the decree as it stood before the amendment. Even if the amendment was wrongly made, he is bound by it.

6. In this view I allow the revision petition and direct execution to proceed on the basis of the decree as amended. The decree-holder will pay the costs of the revision petition.


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