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S.K. Subba Naicker Vs. Savarimuthu Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1940)2MLJ709
AppellantS.K. Subba Naicker
RespondentSavarimuthu Pillai and ors.
Cases ReferredViswanatha Aiyar v. Narayanaswami Aiyar
Excerpt:
- .....- act iv of 1938) is an important matter coming within the scope in my opinion, of section 115, civil procedure code and i accordingly proceed to deal with the decision of the learned district munsif in revision. the interpretation of section 23 in my opinion admits of no doubt whatever. it enacts that any sale held in execution of any decree cm be set aside provided that(i) it was of immovable property in which an agriculturist had an interest;(ii) it was on or after 1st october, 1937;(iii) the judgment-debtor must be an agriculturist entitled to the benefits of the act;(iv) the application must be made within 90 days of the commencement of the act.2. the clause 'notwithstanding that the sale. has been confirmed' in no way affects the main provisions of the section, and obviously.....
Judgment:

King, J.

1. This appeal is entitled to succeed on the ground that no appeal lay to the lower appellate Court - see Viswanatha Aiyar v. Narayanaswami Aiyar (1939) 2 M.L.J. 398, but the correct interpretation of Section 23 of the Act (Agriculturists Relief Act - Act IV of 1938) is an important matter coming within the scope in my opinion, of Section 115, Civil Procedure Code and I accordingly proceed to deal with the decision of the learned District Munsif in revision. The interpretation of Section 23 in my opinion admits of no doubt whatever. It enacts that any sale held in execution of any decree cm be set aside provided that

(i) it was of immovable property in which an agriculturist had an interest;

(ii) it was on or after 1st October, 1937;

(iii) the judgment-debtor must be an agriculturist entitled to the benefits of the Act;

(iv) the application must be made within 90 days of the commencement of the Act.

2. The clause 'notwithstanding that the sale. Has been confirmed' in no way affects the main provisions of the section, and obviously cannot be used to introduce any new provisos as, for example, the proviso which the District Munsif reads into the section 'that a sale shall not have been followed by delivery of property'. The section would retain exactly the same meaning without this clause. It is merely a recognition by the Legislature that the new enactment is at variance with older enactments in the Limitation Act and Civil Procedure Code. I am accordingly of opinion that the view of the learned Subordinate Judge though expressed in an appeal which he was incompetent to hear is the right view and agree that the matter must be remanded to the District Munsif for disposal. Costs of this appeal will abide the event.


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