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Selvalammal Vs. Sumathi Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 467 of 1982
Judge
Reported inAIR1983Mad294; (1983)2MLJ146
ActsTamil Nadu Agriculturists' Relief Act, 1938 - Sections 19 and 20
AppellantSelvalammal
RespondentSumathi Ammal
Appellant AdvocateT.V. Balakrishnan, Adv.
Respondent AdvocateN. Vanchinathan, Adv.
Cases Referred(Meyyan v. Kolanda Gounder) and
Excerpt:
- - the proviso discountenances the pleas of the judgment-debtor for reliefs under the act, if either of the contingencies is satisfied......relief act 4 of 1938, hereinafter referred to as the act. the preliminary objection taken by the decree holder before the court below to this application by the judgment-debtor was that the judgment-debtor earlier filed a similar application under dismissed on 7-8-1978 and hence, the present application is not maintainable. this objection has been overruled by the court below by the order, subject matter of revision and the court below has directed enquiry into the merits of the application.2. mr. t. v. balakrishnan, learned counsel for the decree-holder, submits that the earlier application under s. 19 of the act was, in fact, preceded by an application under s. 20 for stay and the substantive application under s. 19 was dismissed as 'not pressed at present' on 7-8-1978, and this.....
Judgment:
ORDER

1. The decree-holder in O. S. No.1355 of 1971 on the file of the District Munsif, Kallakurichi, is the petitioner in this revision. The respondent herein is the judgment-debtor. The judgment debtor filed an application I. A. No. 2263 of 1979 under S. 19 of the Tamil Nadu Agriculturists' Relief Act 4 of 1938, hereinafter referred to as the Act. The preliminary objection taken by the decree holder before the court below to this application by the judgment-debtor was that the judgment-debtor earlier filed a similar application under dismissed on 7-8-1978 and hence, the present application is not maintainable. This objection has been overruled by the court below by the order, subject matter of revision and the court below has directed enquiry into the merits of the application.

2. Mr. T. V. Balakrishnan, learned counsel for the decree-holder, submits that the earlier application under S. 19 of the Act was, in fact, preceded by an application under S. 20 for stay and the substantive application under S. 19 was dismissed as 'not pressed at present' on 7-8-1978, and this would amount to 'rejection' of the application under S. 19 and hence, as per the later part of the proviso to S. 20 the decree as it stands shall be executed notwithstanding anything contained in the Act to the contrary. In support of his submission, learned counsel relies on the judgment of Rajamannar C. J. in Narayanan V. Rathinasami : AIR1953Mad421 . As against this line of argument put forth by the learned counsel for the decree-holder, Mr. N. vanchinathan, learned counsel for the judgment-debtor, would submit that on the facts and in the context of the case it would be a misnomer to rely on the later part of the proviso to S. 20 and since the earlier application under S. 19 was dismissed as 'not pressed at present' there was no rejection of the application under S. 19 on merits and hence, there is no bar law for prosecuting a fresh application under S. 19.

3. On an appraisal of the language of the concerned provisions, I am inclined to sustain the order of the court below. S. 20 reads as follows:

'20 Stay of execution proceedings: Every Court executing a decree passed against a person entitled to the benefits of this Act, shall on application, stay the proceedings until the court which passed the decree has passed orders on an application made or to be made under S. 19;

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 anything contained in his Act to the contrary'.

Section 19 is a substantive provision and it enables the judgment-debtor to apply for amendment of certain decrees provided the contingencies stipulated therein are fulfilled. It is not possible to state that without resorting to S. 20 the judgment-debtor cannot resort to S. 19. Mr. R. V. Balakrishnan, learned counsel for the decree-holder, also does not put forth a proposition that S. 19 could be resorted to only after exhausting S. 20. The proviso to S. 20 stipulates two contingencies. One is where the judgment-debtor does not apply to the court which passed the decree for relief under S. 19, within sixty days after the application for stay has been granted. The second is where such an application has been made and rejected. On either of those two contingencies getting fulfilled the later part of the said proviso lays down that the decree shall be executed as it stands, notwithstanding anything contained in the Act to the contrary. The proviso discountenances the pleas of the judgment-debtor for reliefs under the Act, if either of the contingencies is satisfied. Taking the second contingency, the expression used is 'rejected'. This expression must definitely have a legal potency, so that the implications thereof would operate as a bar for the judgment debtor subsequently filing an application under S. 19 of filing such an application proceeded by an application under S. 20 for stay, Mr. T. V. Balakrishnan learned counsel for the decree-holder, submits that a dismissal for whatever reason can definitely fit in with the expression 'rejected' and the rejection need not necessarily be on merits. I am afraid that such a technical view will not be in consonance with the scheme and object of the Act, which are to provide reliefs to agriculturists from the burden of debts in the State Tamil Nadu if in fact they satisfy the ingredients contemplated under the Act for the grant of such reliefs. If an application for reliefs under S. 19 has been preferred by the judgment debtor, a bare dismissal of the said application on an endorsement as 'not pressed at present' would not tantamount to rejection with in the meaning of the proviso, so as to prevent the judgment debtor from seeking the process of fresh applications under Ss. 20 and 19, the reason being, by such an order there is neither an adjudication by the court on merits not the judgment debtor gave up his rights without reservation and without preserving his rights for further action and revival. Ss. 19 and 20 should be read together and S. 20 is ancillary to S. 19. If, however, the judgment debtor approached the court with an avowed declaration of obtaining reliefs under S. 19; sought and obtained stay under S. 20, but did not follow it up by filing the requisite application under S. 19, then again the judgment-debtor will be precluded form filing successive applications under S. 20 or S. 19. This is the first contingency. The judgment debtor persuades the court to grant stay of the decree passed against him on his declaration that he is entitled to the benefits of the Act and he must be enabled to apply for and obtain the reliefs under S. 19, and the court shows him the indulgence of stay, so that the ultimate the judgment debtor, if he could succeed in getting the decree scaled down, could do so by resorting to the process under S. 19. This is a statutory indulgence. If the judgment debtor should give a go-by to his solemn declaration and would not adhere to the stand taken by him within the time reserved-the resultant inference being that the obtained stay only to shall of execution-the first contingency set out in the proviso to S. 20 will become operative, and the decree will have to be executed as it stands, and the judgment debtor will be precluded from claiming reliefs under Rs. 19 by filing any application there for, with or without and application and orders under S. 20 preceding the same. Even here, there could be and exception, as in the case judgment debtor to seek the relief. The following passage occurring in the very decision relied on by the learned counsel for the decree-holder makes the position very clear-

'The only question therefore is whether the judgment debtor not having filed an application under S. 29 within the prescribed time from the date of the stay order under S. 20 passed on his prior application, is now precluded from again filing another application under S. 20 followed by an application under S. 19. Undoubtedly the judgment-debtor would not have such a right, that is a right to file successive application under S. 20 or S. 19 if the reliefs, which he claims as being entitled to are the same in the several applications. But at the same time, it is equally clear that if a subsequent application is based upon a provision of law not in existence at the time of a prior application for his he will not be debarred form filing the later application simply because he had field a prior application when the state of law did not entitle him to the relief to which he became entitled by a subsequent change in the law'.

4. Mr. T. V. Balakrishnan, learned counsel for the decree-holder, states that the above observations of the learned Chief Justice indicate that successive application under S. 19 of the Act are also barred, irrespective of the nature of the order passed in the earlier application. Such a proposition could not be spelt out from the judgment of the learned Chief Justice on the facts dealt with by him. The learned Chief Justice dealt with a case where the first contingency existed and the judgment debtor having had obtained an order of stay under S. 20, did not follow it up with the substantive application under S. 19; within sixty days, but much later, once again resorted to the same processes. As could be seen from the judgment the learned Chief Justice found a change in law, which made even the second application maintainable. In the instant case, we are not facing the first contingency at all. Here, the application under S. 19 was filed as a follow up action to orders under S. 20, but that application was not rejected on merits, either in law or on facts, but on an endorsement as 'not pressed at present'. It is not possible to construe such an order of dismissal as one of 'rejection', so as to bring in the second contingency and state that the judgment-debtor is barred from filing the successive application. The endorsement made it clear that the judgment-debtor preserved for himself the right for future action and revival. Though not very germane, I must recapitulate that recently I had occasion to deal with an analogous proposition in C. R. P. No. 176 of 1982 (Meyyan v. Kolanda Gounder) and there, I found that if in fact the reliefs prayed for under the Debt Relief Statutes have been negatived, on merits they would come within the principle of res judicata. Such is not the case here. Admittedly, there was no disposal of the earlier application on merits, and in my view, the court below rightly overruled the preliminary objection put forth by the decree-holder. In this view, I am not able to persuade myself to interfere in revision. Accordingly the revision is dismissed. There will be no order as to costs.

Revision dismissed.


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