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Sethuraman thevar Vs. Kameetha Rowther and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 91 of 1951
Judge
Reported inAIR1954Mad368; (1953)1MLJ742
ActsDebt Law; Madras Agriculturists' Relief (Amendment) Act, 1948 - Sections 23A; Code of Civil Procedure (CPC) , 1908
AppellantSethuraman thevar
RespondentKameetha Rowther and ors.
Appellant AdvocateV. Meenakshisundaram, Adv.
Respondent AdvocateR. Kesava Iyengar and ;K. Parasaram, Advs.
DispositionAppeal dismissed
Excerpt:
.....act, 1908, or in the civil procedure code, 1908, and notwithstanding that the sale has been confirmed, any judgment-debtor claiming to be entitled to the benefits of the said act may apply to the court within 90 days of such commencement or of the confirmation of the sale, whichever is later, to set aside the sale or foreclosure of the property, and the court shall, if satisfied that the applicant is a person entitled to the benefits of the said act, order the sale or foreclosure to be set aside, and t it is a well-recognised principle of construction of statutes that inconsistency should not be attributed to legislature unless it is inevitable......days of such commencement or of the confirmation of the sale, whichever is later, to set aside the sale or foreclosure of the property, and the court shall, if satisfied that the applicant is a person entitled to the benefits of the said act, order the sale or foreclosure to be set aside, and thereupon the sale or foreclosure shall be deemed not to havetaken place at all. provided that no such order shall be made without notice to the decree-holder, the auction purchaser, and other persons interest- ed in such sale or foreclosure and without affording them an opportunity to be heard in the matter.'the trial court dismissed the application hold- ing that the petitioner is not entitled' to the benefits of that section as he had not applied within 90 days of the confirmation of the sale. on.....
Judgment:

Chandra Reddi, J.

1. The judgment-debtor is the appellant. In execution of a decree obtained on the foot of a mortgage the properties of the judgment-debtor were brought to sale on 1-4-1949 and the sale was confirmed on 3-5-1948. Subsequent to this confirmation, the Madras Legislature passed Act 23 of 1948 amending the Madras Agriculturists' Relief Act in several respects. In view of these amendments, the appellant filed a petition E. A. No. 121 of 1949 in E.P. No. 131 of 1947 on 18-3-1949 to set aside the above-mentioned sale.

The basis of this application is Section 23A. That section enacts:

'Where in execution of any decree, any im-moveable property, in which any person entitled to the benefits of the Madras Agriculturists' Relief (Amendment) Act, 1948, had an interest, has been sold or foreclosed on or after 30-9-1947, and the sale had not been confirmed before the commencement of the said Act, (or 90 days, have not elapsed from the confirmation of the sale) or from the foreclosure, at such commencement, then, notwithstanding anything contained in the Indian Limitation Act, 1908, or in the Civil Procedure Code, 1908, and notwithstanding that the sale has been confirmed, any judgment-debtor claiming to be entitled to the benefits of the said Act may apply to the Court within 90 days of such commencement or of the confirmation of the sale, whichever is later, to set aside the sale or foreclosure of the property, and the Court shall, if satisfied that the applicant is a person entitled to the benefits of the said Act, order the sale or foreclosure to be set aside, and thereupon the sale or foreclosure shall be deemed not to havetaken place at all.

Provided that no such order shall be made without notice to the decree-holder, the auction purchaser, and other persons interest- ed in such sale or foreclosure and without affording them an opportunity to be heard in the matter.'

The trial Court dismissed the application hold- ing that the petitioner is not entitled' to the benefits of that section as he had not applied within 90 days of the confirmation of the sale. On appeal the lower appellate Court agreed with this view and confirmed the dismissal of the application.

2. The judgment-debtor, who is aggrieved by these orders, has filed the present second appeal. The question for consideration in this second appeal is whether the view of the Courts below is correct, or whether the appellant can claim the benefit of the provisions of Section 23A. Admittedly, this application has been filed more than 90 days after the confirmation of the sale. But it is urged by Mr. Meenakshi-sundaram that the section confers a right on the judgment-debtor to file an application for setting aside the sale within 90 days of the commencement of the Act or of the confirmation of the sale. I do not think the language of that section can lend itself to this interpretation. The section specifically lays down that it is only sales or foreclosure which had taken place after 30-9-1947 and that have not been confirmed before the qommencement of the Act or confirmed within 90 days of the commencement of the Act that are governed by it. In other words, this applies only to sales whose confirmation had not yet taken place at the commencement of the Act or which have been confirmed within 90 days of the commencement of the Act. The section does not touch sales which have been confirmed more than 90 days before the coming into force of the Act.

The clause 'may apply to the Court within 90 days of such: commencement or of the confirmation of the sale, whichever is later' has reference only to the two conditions laid down earlier in the section, namely, where the confirmation had not taken place, or where it had taken place within 90 days of the commencement of the Act. It looks to me that the expression 'whichever is later' means only 'whichever is the case'. This, in my opinion, will be in harmony with the earlier portion of the section. If the interpretation sought to be put on the expression is accepted, it would be repugnant to one of the conditions laid down in the section, namely, that 90 days should not have elapsed from the confirmation of the sale or foreclosure at the commencement of the Act. It is a well-recognised principle of construction of statutes that inconsistency should not be attributed to Legislature unless it is inevitable. As far as possible an interpretation, which would give effect to all the provisions of an enactment and which would reconcile apparently conflicting provisions of a section, should be adopted. The view taken by me is conformable to this rule of construction.

3. In these circumstances, the orders of theCourts below are correct and have to be affirmed. The civil miscellaneous second appeal istherefore dismissed with costs. Leave refused.


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