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Karnam Hirannayya Vs. Matan Thippeswami and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad215; (1938)2MLJ1032
AppellantKarnam Hirannayya
RespondentMatan Thippeswami and anr.
Excerpt:
- - 4. in these circumstances, we are quite clearly of the opinion that the learned district judge acted without jurisdiction when he allowed the sale to go on the 23rd and 24th of august and took bids......has been made, shall not be proceeded with until the board has dismissed the application.2. the learned judge refused however to stay the sale proceedings without seeing a certified copy of the application to the debt conciliation board. the judgment-debtor's application was posted to the 23rd of august, the dated fixed for sale. on that date the learned district judge ordered the sale to go on because there was nothing more than the petitioner's statement to substantiate his petition. the sale was continued on the 24th of august, and on that date the judgment-debtor made another attempt to get the proceedings stayed and this time he filed an affidavit of his vakil to the effect that an application had been made to the debt conciliation board. upon that the learned district judge.....
Judgment:

Burn, J.

1. This is an appeal from the order of the learned District Judge of Bellary in a matter arising in execution. The facts which are necessary for the disposal of this appeal are simple. The appellant was the judgment-debtor in O.S. No. 38 of 1935. The respondents applied for execution of the decree by sale of the mortgaged property and the sale was fixed for 23rd August 1937. On the 16th of August, the judgment-debtor made an application to the Debt Conciliation Board under Section 4 of the Madras Debt Conciliation Act of 1936. On the 19th August, the judgment-debtor made an application to the District Court which was executing the decree for staying the sale of the property on the ground that he had made an application under Section 25 of the Debt Conciliation Act, which runs as follows:

When an application has been made to a board under Section 4 any suit or other proceedings then pending before a Civil Court in respect of any debt for the settlement of which application has been made, shall not be proceeded with until the Board has dismissed the application.

2. The learned Judge refused however to stay the sale proceedings without seeing a certified copy of the application to the Debt Conciliation Board. The judgment-debtor's application was posted to the 23rd of August, the dated fixed for sale. On that date the learned District Judge ordered the sale to go on because there was nothing more than the petitioner's statement to substantiate his petition. The sale was continued on the 24th of August, and on that date the judgment-debtor made another attempt to get the proceedings stayed and this time he filed an affidavit of his Vakil to the effect that an application had been made to the Debt Conciliation Board. Upon that the learned District Judge decided to stay further proceedings and he granted what he called an interim stay, and posted the petition for further proceedings to the 27th of August. On that date after expressing some doubt about the feasibility of staying the sale after bids had been received the learned District Judge thought that the difficulty could be avoided because the highest bidder up to that point was the decree-holder himself and he had consented to allow his bid to await acceptance if the stay should be dissolved thereafter. Therefore the learned District Judge made the stay of sale absolute. No date was fixed for the resumption of the sale. In October, 1937, it appears to have been brought to the notice of the learned District Judge that the application to the Debt Conciliation Board had been dismissed for default. But he quite properly refused to take action on that since it was alleged that the judgment-debtor had put in a petition for restoration of his application and it was possible that that might be granted. The judgment-debtor's application to the Debt Conciliation Board was finally rejected by the Board on the 1st November. The learned District Judge took up the execution petition again on the 3rd of November to which date he had posted it on the 19th October. On that date he passed the following order:

The judgment-debtor's revision petition has been dismissed and copy of the order has been filed. The judgment-debtor says he is now filing another petition. It is not necessary to give time for that as the revision petition was dismissed, not on technical grounds, but because there appears to the Board to be no possibility of any arrangement being reached. Proceedings will continue. The bid is accepted for confirmation.

3. The learned District Judge apparently refers to the last bid, that of the decree-holder which had been made on the 24th of August.

4. In these circumstances, we are quite clearly of the opinion that the learned District Judge acted without jurisdiction when he allowed the sale to go on the 23rd and 24th of August and took bids. Section 25 of the Debt Conciliation Act says that when an application has been made proceedings such as these shall not be proceeded with until the Board has dismissed the application.

5. Unfortunately the section does not explain in what manner it is to be brought to the notice of the Civil Court that an application has been made to the Board. But this difficulty need not cause us any embarrassment because it is admitted that the judgment-debtor on the 19th of August before the sale was due to begin brought it to the notice of the learned District Judge that he had made an application under Section 4 of the Act.

6. We therefore accept the contention of the judgment-debtor that the sale held in this case was entirely without jurisdiction. We allow the appeal, set aside the order of the learned District judge confirming the sale and direct that the sale do proceed after fresh proclamation. The appellant's costs will be paid by the respondent.


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