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Gopala Menon Vs. Punnoli Korath Meenakshi Arama Karnavastri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad402; (1941)1MLJ106
AppellantGopala Menon
RespondentPunnoli Korath Meenakshi Arama Karnavastri and ors.
Cases Referred(vide Munisamy Mudaly v. Abbu Reddy
Excerpt:
- - where in execution of any decree any immovable property, in which an agriculturist had an interest, has been sold or foreclosed on or after the 1st october, 1937, then, notwithstanding anything contained in the indian limitation act, 1908, or in the code of civil procedure, 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 shall be deemed not to have taken place at all:.....the application to the lower court was made the applicants were not judgment-debtors. both the items of property with which this petition is concerned had been sold as already mentioned on the 28th october, 1937; the sale was confirmed on the 30th november, 1937 and on the same date satisfaction of the decree was entered up. that being so mr. kuttikrishna menon contends that on the 6th april, 1938, nearly five months afterwards, there was no judgment-debtor in small cause no. 204 of 1935 because the decree itself had been wiped out. this contention appears to me to be sound and learned counsel who has appeared for the respondents judgment-debtors has not been able to adduce any arguments to meet it. it is, i think, clear that the person who makes the application under section 23 of.....
Judgment:

Burn, J.

1. This is a revision petition against the order passed by the learned District Munsif of Parappanangadi in E. A. No. 587 of 1938 in S. C. No. 204 of 1935 on the file of the c Sub-Court, Calicut. The application (E. A. No. 587 of 1938) was made by the second and third defendants in the Small Cause Suit. It was a petition under Section 23 of Madras Act IV of 1938. It contained an allegation that three items of immovable property had been sold on the 28th October, 1937, in execution of the Small Cause Court's decree. It contained an allegation that the petitioners are agriculturists and persons eligible to be admitted to the benefits of the Agriculturists' Debt Relief Act and an allegation that the petitioners propose to file a petition in the Sub-Court, Calicut, to scale down the debt under the Agriculturists' Debt Relief Act. The prayer in the petition therefore was that the sale of the three items of immovable property held on the 28th October, 1937, be set aside under Section 23 of Madras Act IV of 1938. The first respondent to this petition was the decree-holder in the Small Cause Suit who had himself purchased item 2. The second respondent in the petition was the purchaser of item 1. He was a third party. Item 3 appears to have been purchased by some other party. The learned District Munsif allowed the application in so far as items 1 and 2 are concerned and directed that the sale be set aside. The third party purchaser of item 1 has preferred this revision petition from that order and the decree-holder purchaser of item 2 has filed a memorandum of objections in which he supports the petitioner and questions the validity of the order of the lower Court on the same grounds as those put forward by the petitioner.

2. The point taken by Mr. Kuttikrishna Menon on behalf of the petitioner is a point of law based upon the wording of Section 23 of Madras Act IV of 1938. Section 23 runs as follows:

Where in execution of any decree any immovable property, in which an agriculturist had an interest, has been sold or foreclosed on or after the 1st October, 1937, then, notwithstanding anything contained in the Indian Limitation Act, 1908, or in the Code of Civil Procedure, 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 shall be deemed not to have taken place at all:

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

3. Mr. Kuttikrishna Menon points out that the application which may be made under this section must be made by a 'judgment-debtor' claiming to be an agriculturist entitled to the benefits of the Act. His contention is that on the 6th April, 1938, when the application to the lower Court was made the applicants were not judgment-debtors. Both the items of property with which this petition is concerned had been sold as already mentioned on the 28th October, 1937; the sale was confirmed on the 30th November, 1937 and on the same date satisfaction of the decree was entered up. That being so Mr. Kuttikrishna Menon contends that on the 6th April, 1938, nearly five months afterwards, there was no judgment-debtor in Small Cause No. 204 of 1935 because the decree itself had been wiped out. This contention appears to me to be sound and learned Counsel who has appeared for the respondents judgment-debtors has not been able to adduce any arguments to meet it. It is, I think, clear that the person who makes the application under Section 23 of Madras Act IV of 1938 must be a judgment-debtor at the time he makes the application. The Act does not say that any person who was a judgment-debtor may apply. It simply says:

Any judgment-debtor....may apply.

4. This petition must therefore be allowed and the order of the lower Court must be set aside in so far as item 1 is concerned. For the same reason I must allow the memorandum of objections preferred by the decree-holder purchaser. It is at first sight rather startling to find that in a memorandum of objections a respondent may raise a question that arises only between him and a co-respondent. But there is the authority of a Full Bench of this High Court for such a method of proceeding (vide Munisamy Mudaly v. Abbu Reddy (1912) 27 M.L.J. 740 : I.L.R. 38 Mad. 705 ). The order of the lower Court as regards items 1 and 2 is therefore set aside and the application of the judgment-debtors dismissed. The petitioner will recover his costs from the judgment-debtors in both the Courts.


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