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Bangaru Chettiar Vs. San Basha Sahib and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 176 of 1974
Judge
Reported inAIR1977Mad1
ActsTamil Nadu Agriculturists' Relief Act, 1938 - Sections 20 and 23-C; Tamil Nadu Agriculturists' Relief (Amendment) Act, 1973
AppellantBangaru Chettiar
RespondentSan Basha Sahib and anr.
Cases ReferredLakshminarasimha Rao v. Garapati Muneyya
Excerpt:
property - interpretation - sections 20 and 23-c of tamil nadu agriculturists relief act, 1938 - respondent applied for sale of judgment-debtor's properties - appellant filed application for setting aside sale under section 23c - having regard to object with which section 23c introduced its operation should be restricted to sales held before act - reference to sales not confirmed at commencement of act or 90 days have not elapsed at such commencement in section is clear indication that section is inapplicable to sales held after commencement of act - if section is intended to have wider operation so as to apply to sales held after act then reference to factum of confirmation is unnecessary and it would have been sufficient to say that all sales after 01.03.1972 can be set aside at.....ramanujam, j.1. the question that arises for our consideration in this case is whether the benefit of sec. 23-c of the tamil nadu agriculturists' relief act 1938, introduced by the amending act 8 of 1973, could be availed of by a judgment-debtor whose property has been sold after 24-1-1973, the date of coming into force of the said amending act. this question has been referred to us by mohan j., in view of the divergent opinions now prevailing on the said question.2. the respondents herein obtained a decree against the appellant herein in o. s. 703 of 1970 on the file of the district munsif court, cuddalore, and in execution of that decree applied for the sale of the judgment-debtor's properties in e. p. no. 1187 of 1973. the appellant filed an application under section 20 of the act 4 of.....
Judgment:

Ramanujam, J.

1. The question that arises for our consideration in this case is whether the benefit of Sec. 23-C of the Tamil Nadu Agriculturists' Relief Act 1938, introduced by the Amending Act 8 of 1973, could be availed of by a judgment-debtor whose property has been sold after 24-1-1973, the date of coming into force of the said amending Act. This question has been referred to us by Mohan J., in view of the divergent opinions now prevailing on the said question.

2. The respondents herein obtained a decree against the appellant herein in O. S. 703 of 1970 on the file of the District Munsif Court, Cuddalore, and in execution of that decree applied for the sale of the judgment-debtor's properties in E. P. No. 1187 of 1973. The appellant filed an application under Section 20 of the Act 4 of 1938 for stay of execution of the decree so as to enable him to apply under Section 19 of the Act for scaling down the decree debt. In that application, stay of execution was ordered on 28-4-1973. The appellant thereafter filed an application under Section 19 on 28-6-1973, in I. A. No. 2437 of 1973. On the ground that the appellant had not filed an application under Section 19 exactly within 60 days, the executing court proceeded with the execution and the judgment-debtor's properties were actually sold on 24-9-1973, notwithstanding the pendency of the application under Section 19. The sale has not, however, been confirmed as yet. The appellant's application under Section 19 for scaling down the decree debt, was disposed of on 15-10-1973, and the decree debt had in fact been scaled down. The appellant thereafter filed E. A. No. 2692 of 1972 under Section 23-C in E. P. 1187 of 1973 on 22-10-1973 to have the sale set aside, but the said application came to be dismissed on 21-12-1973 on the ground that the sale having taken place after 24-4-1973, the date of the coming into force of the Amending Act 8 of 1973, Section 23-C cannot be invoked. An appeal therefrom was also dismissed by the Sub-Court, Cuddalore, following the decision in Seshayya v. Venkataraman : AIR1942Mad278 . The matter was taken to this court in C. M. S. A. No. 176 of 1974. Mohan J., who heard the said appeal in the first instance, having regard to the conflict of judicial opinion on the interpretation of Section 23-C referred the case to a Full Bench.

3. Tamil Nadu Agriculturists' Relief Act 4 of 1938 was enacted in order to provide relief to indebted agriculturists in the State. The said Act has been amended from time to time and the latest amendment was by Act 8 of 1973, which came into force on 24-1-1973. By virtue of the said amending Act, all debts payable by the agriculturists as on 1-3-1972 shall be scaled down in accordance with the provision of Chapter II of the Principal Act as amended. Sections 7 and 8 provide for the scaling down of all debts payable by an agriculturist as on 1st March 1972. Section 12 prescribes interest at 9 per cent old loans incurred before 1-3-1972 which had been scaled down and Section 13 prescribes interest at the rate of 9 per cent for the debts incurred after 1-3-1972. Section 9-A deals with usufructuary mortgages. Chapter IV deals with procedure in regard to pending suits and execution petitions. Sec. 19 occurring in that Chapter provides for amendment of decrees passed prior to 1st March 1972, by scaling down the decree debt. Section 20 enables the agriculturist debtors to apply for stay of the execution of the decrees until the court which passed the decree has disposed of an application under Section 19. The proviso to Section 20 says that if a judgment-debtor who had obtained stay of execution under that section does not apply under Section 19 within 60 days, the decree can be executed as it stands. Then comes Section 23, which is as follows--

'Where in execution of any decree any immoveable property, in which an agriculturist had an interest, has been sold or foreclosed on or after 1st October 1937, then notwithstanding anything contained in the Indian Limitation Act, 1908 or in the Civil Procedure Code (Act 5 of 1908) 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 within 90 days of the commencement of this Act to set aside the sale or foreclosure of the property, and the court shall if satisfied that the applicant is an agriculturist entitled to the benefits of this Act, order the sale or foreclosure to be set aside and thereupon the sale (or foreclosure) shall be deemed not to have taken place at all.'

Section 23 which is really an extension of Section 7 enables the judgment-debtor to apply for setting aside a sale held on or after 1-10-1937, even if it has been confirmed, within 90 days of the commencement of the Act 4 of 1938.

4. sections 23-A, 23-B and 23-C came to be introduced by Amending Acts 23 of 1948, 24 of 1950 and 8 of 1973, respectively, enabling the courts to set aside sales of immoveable property at the instance of the agriculturist debtors in order to give benefit of the relative amending Act. Section 23-A enables the court to set aside sales of immoveable property belonging to a judgment-debtor held on or after 30th September 1947 if the sale has not been confirmed before the commencement of the Act or 90 days have not elapsed from the confirmation of sale at such commencement, if the judgment-debtor applies to the court within 90 days of such commencement or the confirmation of sale whichever is later. Section 23-B merely extended the application of Section 23-A to sales held on or after 23-4-1950 to ensure that the agriculturist debtors get the benefit of the amending Act 24 of 1950. Similarly Section 23-C has been introduced by amending Act 8 of 1973, enabling the court to set aside sales held on or after 1-3-1972, if the sale has not been confirmed before the publication of Act 8 or 90 days have not elapsed from the confirmation of sale at such publication. The relevant portion of Section 23-C is extracted below:

'23-C. Power of court to set aside sales of immovable property in certain cases: Where in execution of any decree, any immoveable property in which any person entitled to the benefits of the Tamil Nadu Agriculturists' Relief (Amendment) Act, 1972, had an interest, has been sold or foreclosed on or after the 1st March 1972, and the sale has not been confirmed before the publication of the said Act in the Tamil Nadu Government Gazette; or 90 days have not elapsed from the confirmation of the sale or from the foreclosure at such publication, then, notwithstanding anything contained in the Limitation Act 1963 (Central Act 36 of 1963) or in the Civil Procedure Code 1908 (Central Act V of 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 publication or of the confirmation of 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 and foreclosure to be set aside, and thereupon the sale or foreclosure shall be deemed not to have taken place at all.'

5. It is the interpretation of Section 23-C there is cleavage of judicial opinion. One view is that Section 23-C can be invoked only in respect of sales held on or after 1-3-1972, but before the publication of the said Act, and that it will not apply to sales held after 24-1-1973, the date of publication of the Act. The other view is that it applies to all sales held on or after 1-3-1972, and that therefore there is no scope for restricting its operation to sales held between 1-3-1972 and 24-1-1973, the date of publication of the Act 8 of 1973.

6. In Dharmarajan v. Nagalinga Kandiar, : (1975)2MLJ34 , N.S. Ramaswami J. has expressed the view that it applies only to sales held after 1st March 1972, but before the publication of Act 8 of 1973, that the words 'the sale has not been confirmed before the publication of the said Act in the Tamil Nadu Government Gazette or 90 days have not elapsed from the confirmation of the sale of from the foreclosure at such publication' occurring in the section clearly indicate that the sale which is sought to be set aside should have taken place prior to the publication of Act 8 of 1973 as then alone the question of sale not having been confirmed before the publication of the Act, or 90 days having not elapsed from such confirmation would arise. In Doraiswami Gounder v. Parayammal : AIR1976Mad66 , Mohan J. followed the above decision of N. S. Ramaswami J. and held that the sale in that case having taken place on 13-2-1973, after the coming into force of Madras Act 8 of 1973, on 24-1-1973, Section 23-C cannot be invoked to set aside such a sale. Natarajan J. in C. M. A. No. 230 of 1974 (Mad)--Ambujammal v. Vedavalli--has also taken the same view. This view finds support from the decision of a Division Bench of this court in Seshayya v. Venkataramayya : AIR1942Mad278 rendered under Section 23 of the Act, and a decision of Viswanatha Sastri J. in Ramakotayya v. Nagi Reddi, 1957-1 Andh WR 142, rendered under Sec. 23-A of the Act.

7. A different view has been expressed by Paul J. in Thirukannu Reddiar v. Venkatasami Reddiar, C. M. A. No. 70 of 1974 (Mad) and his reasoning is this--

'There is nothing in that section which would show that the benefits conferred by that section would not be available to a judgment-debtor if the sake is held after the Act came into force. No doubt the words 'has been sold or foreclosed' would indicate that the sale must have been a fait accompli before the Act came into force. But those words are qualified by the subsequent words 'on or after the 1st March 1972'. This would show that if the sale had been held before 1st March 1972, Section 23-C cannot be invoked. This does not mean that only in respect of sales held after 1st March 1972, and before 24-1-1973, the date on which the Act came into force, applications under Section 23-C would lie. A reading of the entire section would certainly show that Section 23-C was intended to be applicable even in cases of sales held after the commencement of Act.'

Sethuraman J. Nagalakshmi Ammal v. Govindasami Pillai, C. M. S. A. No. 130 of 1974 (Mad) has also taken the same view, after considering the earlier decision of the Division Bench in Seshayya v. Venkataramayya : AIR1942Mad278 . In that case the sale took place on 26-3-1973, but before the confirmation of the sale the judgment-debtor had applied for setting aside the sale under Section 23-C on the ground that he had applied under Section 19 to scale down the decree. The application under Section 23-C for setting aside the sale on the ground that an application for scaling down the decree debt is pending was allowed by the executing court but on appeal the order setting aside the sale was set aside on the ground that Section 23-C has no application. On a further appeal by the judgment-debtor. Sethuraman J. allowed the appeal observing--

'On a plain reading of this provision it comes for application where any immoveable property, in which any person entitled to the benefits of the Amending Act had an interest, had been sold in execution of a decree on or after the 1st March 1972. This condition is satisfied in the present case because the sale was held after 1st March 1972 i.e., on 26th March 1973. If the sale had been confirmed after 1st March 1972, and before the publication of the amending Act, then the debtor claiming benefits under the Act could apply for setting aside the sale Another contingency was also contemplated, viz., of the judgment-debtor applying within 90 days from the confirmation of the sale.'

The learned Judge distinguished the decision in Seshayya v. Venkataramayya : AIR1942Mad278 on the ground that it dealt with Sec. 23 which was somewhat differently worded and that cannot be applied to interpret the scope of Section 23-C which is differently worded and which clearly con-templates a case where an application for setting aside the sale being made within 90 days of its confirmation which was not the case in Section 23.

8. Thus one point of difference is on the question whether the decisions rendered with reference to Sections 23 and 23-A will govern the interpretation of Section 23-C.

9. Wadsworth and Patanjali Sastri. JJ. in Seshayya v. Venkataramayya : AIR1942Mad278 had held that Section 23 of Madras Act 4 of 1938 has no application to sales held after the Act came into force. In that case the sale was held on 29th March 1938, just a week after the Act came into force. It was contended on behalf of the judgment-debtor that Section 23 applied in terms to all sales held on or after 1st October 1937, the only future or outer limit expressly laid down in the Section being the date within which the application is to be made, which is within 90 days of the commencement of the Act, and that within the said 90 days any judgment-debtor entitled to the benefit of the Act may apply to set aside the sale even though the sale was held after the Act came into force. This contention was rejected by the Bench for two reasons--(1) Having regard to the three verbs used in that section namely 'had an interest', 'has been sold' and 'may apply', the section should be taken to have been drafted with reference to the pointing of time at which the Act came into force and, therefore, the section should be taken to relate only to sales held between 1st October 1937 and the date of commencement of the Act. (2) There are alternative provisions found in the Act to relieve agriculturists whose properties have been brought to sale after the commencement of the Act and it is, therefore, most unlikely that the Legislature contemplated the application of Sec. 23 to sales held after the commencement of the Act.

10. In Ramakottayya v. Nagi Reddi, 1957 1 AWR 142, the scope of Section 23-A came up for consideration. In that case the judgment-debtor's property was sold on 4-4-1949, long after 25-1-1949. the date of commencement of Madras Act 23 of 1948 and the application for setting aside the sale under Section 23-A was filed on 22-4-1949. The said application was opposed by the auction-purchaser on the ground that Section 23-A cannot be invoked for setting aside that sale. It was contended on behalf of the judgment-debtor that Section 23-A applies to all sales of properties of agriculturists held after 30th September 1947 and the date of commencement of Act 23 of 1948, a specific provision would have been made to that effect, and that, therefore, the words of Section 23-A being clear and wide, its scope and application cannot be curtailed with reference to any supposed intention of the Legislature. Viswanatha Sastri J. rejected the said contention on the ground that such a construction of Section 23-A would not only lead to palpable injustice and anomaly but will also have the effect of rendering futile the execution proceedings and court sales duly held under the provisions of the Civil Procedure Code and that, therefore, it is permissible to have recourse to construction by implication and to draw inference or supply obvious omissions in order to avoid an abrogation of the provisions of the Civil Procedure Code with regard to execution sales and palpable injustice to third parties. The learned Judge observed:--

'It is clear from the provisions of Section 23-A read as a whole that some restrictions must be put upon the literal meaning of the general words and the character and extent of the restrictions could easily be ascertained from the context. Section 23-A refers to sales held on or after 30-9-1947 but the right to apply under the section is confined to cases where the sale has not been confirmed before the commencement of Act 23 of 1948 or 90 days have not elapsed from the confirmation of the sale at such commencement. The reference to the confirmation of the sale before the commencement of the Act or within 90 days of such commencement indicates that it was only sales held before the Act that were within the contemplation of the Legislature. The date 30th September 1947 was perhaps choose because the Legislative proposals which subsequently became Act 23 of 1948 had been mooted by that date. The reason for ignoring confirmation of sale made before the commencement of the Act or within 90 days of such commencement was apparently to afford relief to debtors where execution proceedings had been hurriedly rushed through by the decree-holders in view of the impending legislation. Whatever be the reason, there is no justification for ignoring the provisions of Section 23-A relating to confirmation of sales in arriving at a conclusion as to whether court sales held after the coming into force of Act 23 of 1948 fell within the purview of Section 23-A. To accept the wide and unrestricted meaning sought to be put upon the words of Section 23-A by the appellant would be to attribute to the Legislature a wholly whimsical and wayward intention.'

11. There cannot be any dispute that Ss. 23, 23-A, 23-B and 23-C are all intended to serve a similar object and purpose. Each of these sections was introduced whenever a new benefit was granted to an agriculturist debtor. The obvious purpose is to see that execution sales hurriedly rushed through in anticipation of the legislation conferring that benefit, are reopened. Therefore the above provisions which are intended to serve a similar purpose should receive a similar interpretation. Therefore, the decisions under Ss. 23 and 23-A cannot altogether be ignored while interpreting Section 23-C.

12. It is true, the decision in Seshayya v. Venkataramayya : AIR1942Mad278 , dealt with S. 23 which was somewhat differently worded than S. 23-A or S. 23-C and the Legislature should be taken to be aware of the said decision while enacting S. 23-A by amending Act 23 of 1948 and S. 23-C by amending Act 8 of 1973 with slightly different language. The decision in Ramakotayya v. Nagi Reddi, 1957 1 AWR 142, however, dealt with S. 23-A which is practically identical with S. 23-C. Even though Section 23-A is somewhat differently worded than S. 23, the reasoning adopted in the latter case is substantially the same as that in the former. This is due to the fact that Ss. 23 and 23-A being intended to serve a similar purpose notwithstanding the difference in language. they have to be interpreted in the light of the basic object sought to be achieved by enacting them.

13. It is contended by the learned counsel for the respondent that the two reasons given in their former decision for limiting the application of S. 23 to sales held before the commencement of the Principal Act equally applied to the interpretation of S. 23-C as well. It is also pointed out that Viswanatha Sastri J. dealing with S. 23-A which used more or less the same language as S. 23-C without reference to the earlier decision gave the same reasoning for limiting the operation of Section 23-A to sales held before the commencement of Madras Act 23 of 1948, that the learned Judge felt that though S. 23-A if literally understood would apply to all sales held on or after 20th September 1947, some restrictions one the literal meaning of the general words have to be ascertained from the context.

14. A close reading of S. 23-C indicates that it is in two parts, the first part dealing with the nature of the sales that are covered by the section and the latter part dealing with the limitation for filing an application for setting aside those sales and that the first part refers to sales held on or 1-3-1972, which have not been confirmed before the commencement of Amending Act of 1973 or 90 days have not elapsed from the confirmation of the sale at such commencement. On the wording of the section it can be applied to sales which have not been confirmed before the commencement of the amending Act or 90 days have not elapsed at the commencement. Though a sale held after the Act will also satisfy the requirements set out in the section, as in respect of such a sale there is no question of confirmation before the Act, to give such as unrestricted meaning to the words used in S. 23-A would be to attribute to the Legislature a wholly whimsical and wayward intention as pointed out by Viswanatha Sastri J. Though S. 23-C if literally construed, is wide enough to include sales that had taken place after the Act, as there are no words limiting the scope of the section. we think that having regard to the object with which the section was introduced its operation should be restricted to sales held before the Act. We are of the view that though the section is not happily worded, the intention appears to be clear. The reference to sales not confirmed at the commencement of the Act or 90 days have not elapsed at such commencement in the section is a clear indication that the section is inapplicable to sales held after the Act. If the section is intended to have a wider operation so as to apply to sales held after the Act, then reference to the factum of confirmation is quite unnecessary and it would have been sufficient to say that all sales after 1-3-1972, can be set aside at the instance of the judgment-debtor.

15. Sec. 23-C also uses the same language as S. 23-A and on the wording of the section it is applicable to sales not confirmed before the publication of the Act or 90 days have not elapsed from the confirmation at such commencement. It is true, if the Legislature can think of setting aside sales held before the commencement of the Act, it can also provide for setting aside the sales held after the commencement of the Act, if the sales have taken place without reference to the benefit the judgment-debtor has got under the provisions of the Act. The question is whether the Legislature intended to do so. If such was the intention, the words 'sale has not been confirmed before the publication of the said Act in the Tamil Nadu Government Gazette or 90 days have not elapsed from the confirmation of the sale or from the foreclosure at such publication' are clearly redundant and purposeless. In construing the scope of first part of S. 23-C it is not possible to bring in aid the latter part dealing with limitation as has been done in some cases. The latter part cannot enlarge the scope of the first part.

16. As already stated, the main intention behind Ss. 23, 23-A, 23-B and 23-C is to give an opportunity to the agriculturist-debtor to have his debts scaled down. This object is achieved in cases where the sale is held after the Act by the debtor raising his plea that he is entitled to the benefit of the principal Act as amended from time to time even before the sale takes place. In such cases there is no necessity for the agriculturists to wait till the sale takes place and then apply for setting aside the same. as they have an opportunity to have the debt scaled down even before the sale. It is only in respect of sales held before the coming into force of the Act which had been confirmed or await confirmation, an opportunity has to be given to the agriculturist to have his decree debt scaled down and to have the sale set aside if the sale has taken place for recovery of any amount in excess of the debt as scaled down. This is the reasoning adopted by the Division Bench in Seshayya v. Venkataramayya : AIR1942Mad278 , while interpreting S. 23 and by Viswanatha Sastri J. in Ramakotayya v. Nagi Reddi, 1957 1 AWR 142, while interpreting Sec. 23-A. In interpreting a statutory provision, the intention of the Legislature has necessarily to be kept in mind. Is it possible to attribute an intention to the Legislature in this case to give a further opportunity to an agriculturist to have the sale held after the Act set aside on the ground that he is entitled to the benefits of that Act, even though he had an earlier opportunity to prevent the sale and to have his debts scaled down under the same statute even before the sale takes place? In respect of sales held after the Act proceedings in execution should have been pending at its commencement or initiated later. In respect of that proceedings the Act gives a sufficient remedy by way of Ss. 19 and 20. to see that the sale does not take place before the debt is scaled down. After giving such an opportunity to see that execution sale is not held without scaling down the debt, it appears to be quite unnecessary and meaningless to give another or further opportunity to the judgment-debtor to have the sale set aside on the ground that the decree debt has not been scaled down under S. 19. Such an opportunity is necessary only in cases where the benefits of the Act could not be claimed and the decree debt scaled down before the sale is held. If such were the intention of the Legislature, then it is unnecessary for the Legislature to provide a restriction with reference to the date of commencement of the Act or the date of confirmation of sale. If the sale after the Act are also intended to be set aside, the Legislature would not have fixed a time limit for application with reference to the date of commencement of the Act or of the confirmation.

17. In this context the legislative history has also to be taken note of. While interpreting S.23, a Bench of this court held in Seshayya v. Venkataramayya : AIR1942Mad278 , that it will apply only to sales held before the commencement of the Act. The Legislature appears to have accepted the decision as a correct interpretation of that provision and brought in Ss. 23-A by Madras Act 23 of 1948, 23-B by Madras Act 24 of 1950 and 23-C by Madras Act 8 of 1973, for setting aside the sales that had taken place after 30th September 1947, 25th April 1950 and 24th January 1973, respectively. with a view to enable the agriculturist debtors to have the benefit of the corresponding amending Acts. The introduction of Section 23-A, 23-B and 23-C by the various amending Acts would be quite unnecessary if S. 23 can be made applicable to all sales after the commencement of the principal Act. The fact that on each occasion when a benefit is conferred on an agriculturist under a statute a new provision for setting aside a sale is made shows, that earlier provisions for setting aside sales are intended to have a limited application. The intention of the Legislature in enacting Ss. 23-A, 23-B and 23-C appears to be to enable the judgment-debtors to set aside sales held hurriedly just before the introduction of each of the amending Acts conferring certain benefits on the agriculturist debtors. If the provisions in Ss. 23, 23-A, 23-B are construed as applicable to all sales held after the commencement of the relevant Acts, then there is no necessity for a separate provision like Section 23-C. Having regard to all these circumstances. we hold that S. 23-C cannot be invoked in respect of sales that had taken place after the publication of Act 8 of 1973.

18. However, the learned counsel for the appellant points out that though the sale in this case has been held after the Act came into force, the confirmation has not yet taken place, and, therefore, the appellant can seek to set aside the sale on the ground that the decree has been scaled down and, therefore, the sale should not be confirmed. As the sale had not been confirmed and possession of the property sold has not been delivered to the auction purchaser, execution proceedings should be taken to be pending and now that the appellant has succeeded in getting the decree scaled down. he is entitled to ask the executing court to give effect to the orders passed under S. 23-C has no application to sales held after the Act, it does not mean the sale can be confirmed regardless of the effect of scaling down application. Even then the appellant cannot seek relief under S. 23-C but the relief of setting aside the sale can be claimed in proceedings under the Civil Procedure Code.

19. At this stage, we have to consider the contention raised by the learned counsel for the respondents that as the appellant had not filed an application under S. 19 within 60 days from the date of the order funded Sec. 20 his right to apply under Sec. 19 is lost. In this case the appellant had filed an application and got an order under S. 20 on 28-4-1973, staying the execution sale. He in fact filed an application under S. 19 in I. A. No. 2437 of 1973 on 28-6-1973. According to the appellant the application under Sec. 19 was filed on the 60th day and, therefore, it is in time. The respondents on the other hand, contend that the application under Sec. 19 has been filed after a delay of two days, and, therefore, it should not have been entertained. The court which passed the decree, however. entertained the application under Sec. 19 as being in time and has also disposed of the same on 15-10-1973 scaling down the decree debt to Rs. 399-65, after giving credit to the amounts paid earlier. Thus, the appellants has succeeded in having the decree debt scaled down under S. 19. Therefore, so long as the execution sale has not been confirmed, the executing court has to give effect to the order passed under Sec. 19. The learned counsel for the respondents would contend that the order dated 15-10-1973 in I. A. No. 2437 of 1973 cannot be taken to be valid as the appellant has lost his right to file an application under S. 19, as he has not filed an application within 60 days. Apart from the fact that the lower court has entertained the application under S. 19 and granted relief to the appellant, even assuming that the application under S. 19 was filed after sixty days, it cannot be said that the appellant has lost his right to file an application under Sec. 19. It is true. the decisions referred to by the learned counsel for the appellant in Kumarasami Pillai v. Thiruvengadatha Iyengar : AIR1939Mad613 and Sankaran Nambisan v. Manikkam Devaswam, AIR 1946 Mad 158, seem to support the respondents' stand. However, we are not inclined to agree with the view expressed in those cases that the proviso to S. 20 should be construed as providing a period of limitation for filing an application under S. 19. The proviso to S. 20 is as follows:

'Provided 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 S. 19 or where an application has been so made and is rejected, the decree shall be executed as it stands, notwithstanding any thing contained in this Act to the contrary.'

Construing the proviso a Division Bench of this court in Kumaraswami Pillai v. Tiruvengadatha Iyengar : AIR1939Mad613 , took the view that the proviso fixes a period of limitation for an application under Sec. 19 and within the 60 days contemplated by S. 20, he cannot, and that if steps are not taken under Sec. 19, thereafter, file an application under that section. In AIR 1946 Mad 158, another Division Bench had held that if a stay has been ordered under S. 20, then the proviso to that section is attracted so as to make it incumbent on the judgment-debtor to file an application for relief under Sec. 19 within 60 days of the stay order. N. S. Ramaswami J. in a recent decision in C. M. A. No. 396 of 1975 (Mad) has also followed the earlier decision in Kumarasami Pillai v. Thiruvengadatha Iyengar : AIR1939Mad613 and held that once the judgment-debtor invokes the jurisdiction of the court under S. 20 and obtains stay of execution then undoubtedly a period of limitation is prescribed by the proviso which specifically says that unless an application under S. 19 is filed within 60 days of the order of stay the decree shall be executed as it stands. If the above decisions merely laid down that the decree as it stands can be executed if the judgment-debtor does not file an application within 60 days from the date of the order of stay under S. 20, no exception can be taken, as that position is clear from the terms of the proviso itself. However, if these decisions are taken as laying down that the judgment-debtor has no right to file an application under Sec. 19, after the period of 60 days, we are of the view that it is not the correct legal position. The proviso merely says that if the judgment-debtor does not apply to the court which passed the decree under Sec. 20 for relief under Sec. 19 or where the application has been so made and rejected, the decree can be executed as it stands notwithstanding anything contained in the Act to the contrary. The proviso enables the executing court to proceed with the execution of the decree as it stands if the judgment-debtor does not file an application under Sec. 19 within 60 days from the date he obtains an order under S. 20. The proviso does not say that the right of the judgment-debtor to file an application for relief under Sec. 19 is taken away or comes to an end. The proviso which deals with the power of the executing court to execute the decree as it stands cannot be construed as curtailing the power of the court which passes the decree to entertain and deal with an application under S. 19 by the judgment-debtor. The words notwithstanding anything contained in this Act to the contrary' refer only to the restrictions imposed by the Act on the executing court, particularly by Section 7 which prohibits 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 of the Act. The execution of the decree as it is, by the court cannot be taken as putting an end to the benefits granted to the judgment-debtor by the provisions of the Act particularly by Sec. 19. Even if the sale has taken place in execution of the decree as it stands, still the judgment-debtor can file an application under Sec. 19 and have the decree scaled down and claim the benefit of scaling down at the stage of the application of the sale proceeds. Where an application is made by the judgment-debtor for scaling down after the lapse of 60 days from the grant of stay under Sec. 20 and the decree debt has been scaled down, it is not possible for the sale, even if it had taken place as per the proviso, to be confirmed in the face of the order scaling down the debt. It has been held by Horwill J., in Lakshminarasimha Rao v. Garapati Muneyya : AIR1940Mad825 , that merely because full satisfaction of the decree has been entered up as a result of the sale and the confirmation therefore, be invoked to stay the delivery of the property to the auction purchaser pending the application for scaling down the decree debt. We are not therefore, inclined to construe the non-obstinate clause occurring in the proviso as excluding the application of the Act to the judgment-debtor after the 60 days referred to therein. After the scaling down of the debt the further execution proceedings after the sale can proceed only on the basis of the decree as scaled down. The execution of a decree cannot be said to be complete unless the properties are actually delivered to the auction purchaser. We cannot, therefore, agree with the learned counsel for the respondents that the appellant's application for relief under Sec. 19 cannot be sustained after the period of 60 days.

20. We, therefore, dismiss the appeal holding that S. 23-C cannot be invoked to set aside the sale held in this case, though it is open to the judgment-debtor to raise the plea that the decree debt had been scaled down under S. 19 of the Act at the stage of confirmation of sale. There will be no order as to costs.

21. Appeal dismissed.


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