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Saranga Padayachi Vs. Vairakannu Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1976Mad307; (1976)2MLJ53
AppellantSaranga Padayachi
RespondentVairakannu Chettiar
Cases ReferredKrishnamurthi Iyer v. Sethurama Iyer
Excerpt:
- - this is clearly barred by limitation. 3. the proviso to section 20 clearly says that if an application under section 19 had already not been filed and if such an application is not filed even within sixty days of the order of stay, then the decree shall be executed as it stands, (without being scaled down. 4. the contention on behalf of the judgment-debtor is that in spite of the above said proviso to section 20, there is no period m limitation at all in respect of an application under section 19. it is true that if the judgment-debtor has not invoked section 20 and obtained stay of execution, he can always approach the court which passed the decree (as long as the decree has not been satisfied) for scaling down the debt, if he is entitled to such scaling down on merits......of the judgment-debtor is that in spite of the above said proviso to section 20, there is no period m limitation at all in respect of an application under section 19. it is true that if the judgment-debtor has not invoked section 20 and obtained stay of execution, he can always approach the court which passed the decree (as long as the decree has not been satisfied) for scaling down the debt, if he is entitled to such scaling down on merits. but once he invokes the jurisdiction of the court under section 20 and obtains stay of execution, then undoubtedly a period of limitation is prescribed by the proviso to that section which specifically says that unless an application under section 19 (if it had not been already filed) is fifed within sixty days of the order of stay the decree.....
Judgment:
ORDER

N.S. Ramaswami, J.

1. The petitioner before me filed an application under Section 20 of Act V of 1938 as early as 1973 and obtained an order of stay of execution by the order dated 18th June, 1973. He did not care to file an application under Section 19 within sixty days of the said order, as contemplated under the proviso to Section 20. Later i.e., on 11th April, 1974 the application out of which the present civil miscellaneous appeal arises came to be filed under Section 19 for scaling down the debt. This is clearly barred by limitation.

2. It is contended on behalf of the appellant-judgment-debtor that Section 19 itself does not provide for any period of limitation, that an application under that section can be filed at any time and that, therefore, the proviso to Section 20 should not be invoked in support of the contention that the application under Section 19 is barred by limitation. I am unable to agree with that contention.

3. The proviso to Section 20 clearly says that if an application under Section 19 had already not been filed and if such an application is not filed even within sixty days of the order of stay, then the decree shall be executed as it stands, (without being scaled down.) In Kumaraswami Pillai v. Thiruvengadatha Aiyangar : AIR1939Mad613 , a Division Bench of this Court had to consider whether the said proviso to Section 20 is a condition precedent which means that beyond the period of sixty days provided therein no application under Section 19 can be entertained, any delay cannot be excused, or whether it prescribes only a period of limitation in which event Section 5 of the Limitation Act can be invoked and the delay can be excused for proper and adequate reasons. The Division Bench held that the proviso prescribes only a period of limitation.

4. The contention on behalf of the judgment-debtor is that in spite of the above said proviso to Section 20, there is no period m limitation at all in respect of an application under Section 19. It is true that if the judgment-debtor has not invoked Section 20 and obtained stay of execution, he can always approach the Court which passed the decree (as long as the decree has not been satisfied) for scaling down the debt, if he is entitled to such scaling down on merits. But once he invokes the jurisdiction of the Court under Section 20 and obtains stay of execution, then undoubtedly a period of limitation is prescribed by the proviso to that Section which specifically says that unless an application under Section 19 (if it had not been already filed) is fifed within sixty days of the order of stay the decree shall be executed as it stands.

5. The learned Counsel for the judgment debtor referred to my decision in Dharmarajan v. Nagalinga Kandiar : (1975)2MLJ34 , and that rendered by Justice Mohan, reported in Krishnamurthi Iyer v. Sethurama Iyer : (1976)1MLJ10 , in the course of his arguments. But those cases were concerned with the question whether if a Court-sale had taken place after the commencement of the amendment Act (VIII of 1973), the judgment-debtor can invoke Section 23(c) and pray for setting aside the same. It was held that the judgment-debtor having had enough opportunity to file an application under Section 19 (before the Court-sale takes place) in respect of sales which take place after the publication of Act VIII of 1973, Section 23(c) cannot be invoked. Those decisions have nothing to do with the question of limitation that arises in the present case.

6. The conclusion of the Court below that the present application under Section 19 is barred by limitation is correct. The appeal fails and the same is dismissed. However, there is no order as to costs.


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