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Puthukuzhi Neelakantam Nambisan's son Karnavan Sankaran Nambisan Vs. Koottal Manikkam Devaswam Utama Manikkam Keralan Thachutayya Kaimal Avergal (08.10.1945 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1946Mad158; (1945)2MLJ535
AppellantPuthukuzhi Neelakantam Nambisan's son Karnavan Sankaran Nambisan
RespondentKoottal Manikkam Devaswam Utama Manikkam Keralan Thachutayya Kaimal Avergal
Cases ReferredKumaraswami v. Thiruvengadathan
Excerpt:
- .....an application under section 19 of the madras agriculturists' relief act, 1938, to scale down the decree passed in o.s. no. 46 of 1932 on the file of the subordinate judge's court of ottapalam.2. the decree was passed upon a hypothecation bond executed by defendants 1 to 4 who were members of a tarwad governed by ordinary hindu law. defendants 1 to 3 are brothers and the fourth defendant is the son of the first defendant. the mortgaged properties having been sold, a personal decree for the balance remaining due on the hypothecation was passed on 27th january, 1938. certain properties, belonging to the family which had already been attached were sought to be sold in execution of this decree. at that stage the fourth defendant filed an application (e.a. no. 878 of 1940) under section 20.....
Judgment:

Patanjali Sastri, J.

1. This appeal arises out of an application under Section 19 of the Madras Agriculturists' Relief Act, 1938, to scale down the decree passed in O.S. No. 46 of 1932 on the file of the Subordinate Judge's Court of Ottapalam.

2. The decree was passed upon a hypothecation bond executed by defendants 1 to 4 who were members of a tarwad governed by ordinary Hindu Law. Defendants 1 to 3 are brothers and the fourth defendant is the son of the first defendant. The mortgaged properties having been sold, a personal decree for the balance remaining due on the hypothecation was passed on 27th January, 1938. Certain properties, belonging to the family which had already been attached were sought to be sold in execution of this decree. At that stage the fourth defendant filed an application (E.A. No. 878 of 1940) under Section 20 of the Act for stay of execution, and stay was ordered. But the fourth defendant did not file any application for scaling down the decree under Section 19 within sixty days thereafter. The first defendant who is the manager of the family applied again for a stay of execution in E.A. No. 1055 of 1943 on 20th December, 1943. This petition was dismissed so far as the properties of the tarwad were concerned, but stay was ordered as regards the first defendant's personal liability under the decree. The first defendant then filed the present application as the karnavan of the tarwad for scaling down the decree under Section 19 of the Act. This application was dismissed as barred by time under the proviso to Section 20. Hence this appeal.

3. The question of bar under Section 20 arises not with reference to the stay obtained by the first defendant in E.A. No. 1055 of 1943, for the present application under Section 19 was admittedly filed within sixty days of the order of stay, but with reference to the stay obtained by the fourth defendant in his earlier application for stay E.A. No. 878 of 1940 which, as we have already stated, was allowed. It is argued for the appellant (first defendant) that inasmuch as the Court which was executing the decree was also the Court which passed the decree, Section 20 had no application to this case, that therefore the application made by the fourth defendant under that section for stay should be ignored and that as this Court has held in Kumaraswami v. Thiruvengadathan : AIR1939Mad613 that apart from the period prescribed under the proviso to Section 20, there is no period of limitation for making an application under Section 19, the present application should not have been dismissed as barred by time. We are unable to accept this contention. There is nothing in Section 20 of the Act as we read it to warrant the distinction sought to be made on behalf of the appellant between an execution proceeding taken in a Court which passed the decree and a similar proceeding taken in a Court other than the one which passed the decree. In both cases applications for stay can be made under Section 20 and if a stay is ordered, then the proviso to the section is attracted so as to make it incumbent upon the judgment-debtor to file an application for relief under Section 19 within sixty days of the stay order.

4. It was next urged that the fourth defendant who is only a junior member of the tarwad had no authority to make an application on behalf of the tarwad under Section 20 and any stay order obtained by him could not operate to bar an application made by the karnavan under Section 19 even though the latter application was filed beyond sixty days of such order. It is no doubt true that a junior member of a Hindu joint family cannot act so as to bind the family as a whole by the consequences of his Act. But Section 19 of the Act expressly empowers, in the case of a debt due by a joint Hindu family, any member of the family whether or not he is the judgment-debtor to apply for relief under that section, and as the relief of stay under Section 20 is only ancillary to the application for the relief obtainable under Section 19, it must follow that any member of a joint family in the case of a family debt must also have the power to apply for stay under Section 20. We are therefore of opinion that although the fourth defendant was not the karnavan or the manager of the family, the consequence of his obtaining the stay order under Section 20 in E.A. No. 878 of 1940 was to make the period of limitation provided in Section 20 applicable to the present application made by the first defendant as the manager or karnavan of the family. This contention therefore must also be rejected.

5. In the result the appeal fails and is dismissed with costs.


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