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N.E. Venkatarama Iyer Vs. C.N. Krishnaswamy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1982)1MLJ195
AppellantN.E. Venkatarama Iyer
RespondentC.N. Krishnaswamy
Cases ReferredPerumal v. Chinna Kuppanna Gounder C.R.P. No.
Excerpt:
- - ill of 1978 and the failure to do so will have any effect on the present petition under consideration and the order thereon is itself a point which has to be taken into consideration by the lower court. therefore, instead of further saying anything about the failure on the part of the lower court in exercising the jurisdiction vested with it, it is sufficient at this stage to observe that it is a fit and proper case for being remanded to the lower court for fresh disposal in the light of the observations made above in setting aside the order under revision......who are entitled to the benefits of the act. therefore, the lower court ought to have taken into consideration the provisions of sections 4, 5 and 6, and especially in the instant case, it is the provision under section 6 that is applicable to the facts of the case and as such it is needless to say that the lower court ought to have applied its mind before it passed the order, which is not in consonance with the prayer actually submitted before it by way of application by the judgment-debtor, nor when viewed, with the previous orders passed in the various execution proceedings that had been taken by the decree-holder in o.s. no. 746 of 1972. the learned counsel for the respondent herein also points out that the lower court had not taken into consideration the order that had been pased.....
Judgment:

S. Swamikkannu, J.

1. The learned Second Additional Subordinate Judge of Coimbatore, has allowed the Application viz., E.A. No. 2151 of 1980 in E.P. No. Ill of 1978 in O.S. No. 746 of 1978 filed under Section 4(1)(c) of the Tamil Nadu Debt Relief Act (XIII of 1980) and Sections 47 and 151 of the Code of Civil Procedure, by the judgment-debtor. The two sentences order of the lower Court r ads as follows:

Income certificate produced. Petition allowed.

2. Even at the outset it is to be observed that what that income certificate was and under what provision it was produced before the lower Court and why on the basis of the same the application had been allowed are all a mystery.

3. It is really strange that such two sentences order has been passed by the lower Court when an application has been filed under Section 4(1)(c) of the Tamil Nadu Debt Relief Act (XIII of 1980 as amended by Act XXXV of 1980 and Act X of 1980). Section 4(1)(c) of the said enactment reads as follows:

all suits and other proceedings (including appeals, revisions, attachments or execution proceedings) pending at the commencement of this Act against any debtor for the recovery of any such debt (including interest, if any) shall abate.

It is also relevant in this connection to not & that there are two kinds of debtors; one under the provisions of Section 5 of the enactment and another under the provisions of Section 6 of the enactment of 1980.

4. The provisions under Sections 5 and 6 of the Tamil Nadu Debt Relief Act (XIII of 1980 as amended by Act XXXV of 1980 and; Act X of 1980) have to be taken advantage of by the persons who are qualified to take advantage of the same by approaching the Executive Authority contemplated under the provisions of the Act, viz., The Tahsildar. There is also appeal provision available in the very same enactment itself conferring on the aggrieved person, who had applied before the Executive Officer, viz., the Tahsildar to prefer appeal to the Revenue Divisional Officer. It is only that forum which has got the power to confer remedy on the persons who are entitled to the benefits of the Act. Therefore, the lower Court ought to have taken into consideration the provisions of Sections 4, 5 and 6, and especially in the instant case, it is the provision under Section 6 that is applicable to the facts of the case and as such it is needless to say that the lower Court ought to have applied its mind before it passed the order, which is not in consonance with the prayer actually submitted before it by way of application by the judgment-debtor, nor when viewed, with the previous orders passed in the various execution proceedings that had been taken by the decree-holder in O.S. No. 746 of 1972. The learned Counsel for the respondent herein also points out that the lower Court had not taken into consideration the order that had been pased by it in E.P. No. Ill of 1978 and it is not known as to whether any appeal has been preferred as against the said order in E.P. No. Ill of 1978 and the failure to do so will have any effect on the present petition under consideration and the order thereon is itself a point which has to be taken into consideration by the lower Court. Under the circumstances, when such points have been just exhibiting themselves in gigantic measure, it is rather strange as to how the lower Court has shut its eyes and completely lost sight of the various points of law that arise in the instant case. Therefore, instead of further saying anything about the failure on the part of the lower Court in exercising the jurisdiction vested with it, it is sufficient at this stage to observe that it is a fit and proper case for being remanded to the lower Court for fresh disposal in the light of the observations made above in setting aside the order under revision. The power vested with this Court under the provisions of Section 115 of the Code of Civil Procedure, is necessarily to be exercised With respect to the order under revision and it is hereby exercised. The revision petition is allowed and the order of the lower Court is set aside. The lower Court is to take back the matter on its file and dispose of it in accordance with law as early as possible, and also in the light of the observations made in this order. The lower Court must also enlighten itself with the judgment of this Court, which is the only judgment reported so far as the proivisions of this Act are concerned vis., Perumal v. Chinna Kuppanna Gounder C.R.P. No. 2629 of 1980 ; Repoted in Legal Surveryor Page 61. The court-fee paid on the revision petitions will be refunded to the petitioner.


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