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Thachil Maruth Kunhikkavu Alias Ammini Amma and ors. Vs. Kizhakka Purakkal Thattan Kesavan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.A.O. No. 162 of 1947
Judge
Reported inAIR1950Mad512
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 92; Debt Law; Madras Tenants and Ryots Protection Act, 1946 - Sections 4
AppellantThachil Maruth Kunhikkavu Alias Ammini Amma and ors.
RespondentKizhakka Purakkal Thattan Kesavan and ors.
Appellant AdvocateD.A. Kishna Wariar, Adv.
Respondent AdvocateK.P. Ramakrishna Iyar ; and K. Kuttikrishna Menon, Advs.
DispositionAppeal dismissed
Cases ReferredSham Singh v. Vir Bhan
Excerpt:
civil - sale - section 47 and order 21 rule 92 of code of civil procedure, 1908 and section 4 of madras tenants and ryots protection act, 1946 - second appeal against order passed by subordinate judge dismissing application for stay of confirmation of sale - sale had already taken place - sale was duly confirmed and satisfaction of decree recorded - section 4 applies only to cases where property has not been sold - section 4 not applicable - order passed by court below rejecting application for stay confirmed - appeal liable to be dismissed. - - what is urged by the learned counsel for the appellants is that in an appeal against that final order he is entitled to object to the correctness of interlocutory orders which have led to failure of justice.panchapagesa sastri, j.1. this civil miscellaneous second appeal arises out of execution proceedings. a preliminary objection is taken that no appeal lies. the appeal purports to be under section 47, civil p. c. respondent 2 obtained a decree against the appellants and others and in execution thereof there was a court auction sale on 11-9-1946. the properties were purchased by a stranger and the execution petition was posted to 14-10-1946 for confirmation of sale. meanwhile, madras act xvii [17] of 1946 had come into force. defendants 1, 4 and 5 who are the appellants here deposited two years rent and interest into court and applied in e. a. no. 1075 of 1946 under section 4 of the act for stay of confirmation of sale. the trial court rejected the petition because the sale had already.....
Judgment:

Panchapagesa Sastri, J.

1. This civil miscellaneous second appeal arises out of execution proceedings. A preliminary objection is taken that no appeal lies. The appeal purports to be under Section 47, Civil P. C. Respondent 2 obtained a decree against the appellants and others and in execution thereof there was a court auction sale on 11-9-1946. The properties were purchased by a stranger and the execution petition was posted to 14-10-1946 for confirmation of sale. Meanwhile, Madras Act XVII [17] of 1946 had come into force. Defendants 1, 4 and 5 who are the appellants here deposited two years rent and interest into Court and applied in E. A. No. 1075 of 1946 under Section 4 of the Act for stay of confirmation of sale. The trial Court rejected the petition because the sale had already taken place on 11-9-1946 and in the view of the trial Court Section 4 of Act XVII [17] of 1946 had no application to such a case. The sale was duly confirmed on 21-11-1946 and satisfaction of the decree was recorded. There was an appeal filed to the lower appellate Court purporting to be under Section 47, Civil P. C. against the order in the main execution petition confirming the sale and recording satisfaction. The ground of appeal, however, was really against the correctness of the order refusing stay under Section 4, Madras Act XVII [17] of 1946. The learned Subordinate Judge also took the view that Sections 3 and 4 of the Act read together would not take in the present case where there had been a sale already prior to the coming into force of the Act and the sale was only awaiting confirmation. The appeal was dismissed. It is against this decision that this civil miscellaneous second appeal has been filed again under Section 47, Civil P. C. The preliminary objection is that no appeal lies against an order passed under Section 4 of Act XVII [17] of 1946 as the Act does not provide for an appeal and therefore even the appeal to the lower appellate Court was incompetent and much more so the appeal to this Court.

2. In form, the appeals to the lower appellate Court and to this Court purport to be against the final order in the execution petition. What is urged by the learned counsel for the appellants is that in an appeal against that final order he is entitled to object to the correctness of interlocutory orders which have led to failure of justice. It is in this view that the appeals are sought to be supported as sustainable.

3. It may be pointed out that the Judicial Committee has held recently in Adaikappa, Chettiar v. Chandrasekhara Thevar, I. L. R. (1948) Mad. 505; A. I. R. 1918 P. C. 12, that 'where a legal right is in dispute and the ordinary Courts of the country are seised of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.'

In that case, the matter arose under the terms of the Madras Agriculturists Relief' Act (Madras Act IV [4] of 1938) and notwithstanding the absence of a provision for an appeal with reference to the relevant order under Sections 19 and 20 of the Act by the statute itself. Their Lordships held that where the matter arose in a pending execution petition, the right of appeal conferred by Section 47, Civil P. C. would apply. Of course, the order sought to be appealed against must involve a final determination of rights. In the present case, the refusal of a Court to grant a stay under Section 4 of the Madras Act XVII [17] of 1946 is one which affects the rights of parties. The said Act was passed temporarily staying suits and proceedings against tenants with a view to give them the benefit of an intended legislation. Presumably, the new legislation contemplated would contain a clause to make the provisions of such new enactment applicable to these pending proceedings just as if those clauses would be in force on the day when the suits or proceedings were instituted. That is what happened in connection with temporary enactments staying proceedings in connection with the amendment to the Madras Estates Land Act. Similarly, here also, what is contemplated is that these cases which are now stayed under this Act are so stayed with a view to give to the tenants the benefit of the new legislation. A refusal of stay would amount to deprivation of these possible rights. Therefore the order in question would be a decree as it is one in pending execution proceedings and from this point of view an appeal would lie under Section 47, Civil P. C. either directly against the order refusing stay or at any rate against the final order in the execution petition confirming the sale consequent on the dismissal of the petition under Section 4 of Act XVII [17] of 1946. The preliminary objection is therefore overruled.

4. On the merits, Section 5 of Madras Act XVII [17] of 1946 says:

'Daring the continuance of this Act and subject to the provisions of Sections 4 and 5, ..... no holding of a tenant or ryot shall be liable to be sold or brought to sale in pursuance of a decree, or order, or other proceeding for recovery of rent.'

Section 4 reads as follows:

'All suits, proceedings in execution of decrees or orders and other proceedings ... in which the sale of the holding of a tenant or ryot for recovery of rent is claimed and which are pending at the commencement of this Act or may be instituted thereafter in any civil or revenue Court shall be stayed subject to the provisions of the following sub-section.'

Mr. Krishna Variar argues that Section 4 applies literally to the present proceedings pending in the Court because the suit was one in which the sale of the holding for recovery of rent was claimed. It is true that a literal reading of Section 4, would be in favour of that position. But Section 4 is only intended to carry out the substantive rights conferred by Section 3. If Section 3 is inapplicable, it would not be correct to stay proceedings under Sections 4. Section 3, cl. (b) merely reads that 'no holding of a tenant or ryot shall be liable to be sold or brought to sale'. The question therefore is whether this can have any application to a case where the property has been actually sold but not confirmed. The argument is that the sale becomes complete only on confirmation and until it is confirmed the judgment-debtor has got certain rights and interests in the property. Reliance is placed upon Venkata Madhavarao v. Narayanamurthi : AIR1931Mad511 and it is broadly argued that there is no sale until confirmation. I do not agree with this view. The Civil Procedure Code in various rules under Order XXI makes a clear distinction between 'sale' and 'confirmation of sale'. Section 4 of Act XVII [17] of 1946 applies only to cases where the property has not been sold. This in my opinion, is inapplicable to a case where the auction sale has been effected but what remains to be done is only the confirmation of the sale by Court under Order XXI, Rule 92, Civil P. C. The Legislature contemplates the confirmation of the sale as a later proceeding than the sale itself. Section 23, Madras Agriculturists Belief Act reads:

'Where in execution of any decree any immoveable property, in which an agriculturist had an interest, has been sold .... and notwithstanding that the sale has been confirmed, any judgment-debtor, claiming to be an agriculturist entitled to the benefits of this Act, may apply to the Court ... to set aside the sale . . .'

It will be noticed that the section uses the words 'property has been sold' and then 'notwithstanding that the sale has been confirmed a party can apply to set aside the sale.' This shows that the words 'property has been sold' are understood as merely referring to cases where the sale has already taken place though the confirmation has not followed.

5. Section 17, U. P. Debt Redemption Act of 1940 is as follows:

'Notwithstanding anything contained in Section 16 or in any other law for the time being in force, the land of an agriculturist, etc., shall not be sold or otherwise transferred in execution of a decree to which this Act applies. ...'

A Bench of the Allahabad High Court in S. Zalim Singh v. Mt. Bhagirathi, A. I. R. 1949 ALL. 127: I. L. R. (1948) ALL. 398 has held that this section is inapplicable where the auction sale had taken place and was awaiting confirmation. To the same effect is a decision in Sham Singh v. Vir Bhan, I. L. R. (1942) 23 Lah. 349: A. I. R. 1942 Lah. 102 where the Pull Bench of the Lahore High Court pointed out that the scheme of the Procedure Code makes a clear distinction between 'sale' and 'confirmation of sale' for various purposes. In view of this reasoning which I respectfully adopt, I am of opinion that Section 4 of Act XVII [17] of 1946 will not be applicable to the present case and the order of the lower Courts rejecting the application for stay and confirming the sale cannot be objected to.

6. The civil miscellaneous second appeal fails and is dismissed with costs. (Leave to appeal is refused.)


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