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Chellammal Vs. R.T. Seethalakshmi Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1330 of 1981
Judge
Reported inAIR1983Mad100
ActsTamil Nadu Debt Relief Act, 1979 - Sections 21; Limitation Act, 1963 - Sections 5 - Schedule - Article 127
AppellantChellammal
RespondentR.T. Seethalakshmi Ammal and anr.
Appellant AdvocateS. Ramalingam, ;N. Thiagarajan and ;G. Manjula, Advs.
Respondent AdvocateA. Shanmughavel and ;Jayalakshmi Shanmughavel, Advs.
Cases ReferredP. S. Angaiya Raja v. A. K. D. Alagaraja
Excerpt:
.....date of starting of limitation period - maintainability of application challenged on ground that application filed beyond time prescribed in section 21 - it was alleged that wordings of section 21 keeps act of 1963 out of operation - relevant words used in section 21 introduced only to avoid conflict in limitation period prescribed in article 127 in same respect - entire act of 1963 including section 5 is not barred from consideration - petition allowed and matter remanded to executing court for taking evidence on question of delay and dispose of execution application. - - 21 of the said act, it was provided that where, in execution of any decree, any immovable property in which a debtor entitled to the benefits of the act had an interest, had been sold on or after the 14th days..........the sale having taken place after 14-7-1978, s. 21 would prima facie apply. the third defendant filed the application only on 18-9-1979. calculated from 13-6-1979, the last day for filing of the application would be 11-9-1979. there was thus a delay of seven days in filing the application. 2. in explanation of this delay, in the affidavit in support of the application it was stated - 'today i am filing an application under s. 21 of the act 40 of 1979. under s. 21 of the act of 1979, i ought to have filed the application on or before 13-9-1979. my advocate has been under the bona fide mistaken impression that since the act had come into force on and from 15-7-1979. i am entitled to file that application till 15-10-1979. on the night of 14-9-1979, when we were preparing the petition, it.....
Judgment:
ORDER

1. This civil revision petition has been filed against the order of the Subordinate Judge of Madurai in E. A. 1198 of 1979, which was an application filed on behalf of the third defendant in O. S. 379 of 1976, under S. 5 of the Limitation Act, 1963. The plaintiff filed the suit against her for recovery of a sum of Rs. 7450 due on a mortgage for a sum of Rs. 5000. The third defendant claimed that she was entitled to the benefits of the Tamil Nadu Debt Relief Act 40 of 1979. The Act came into force on the 15th July, 1979. It was published in the Official Gazette on 13-6-1979. By S. 21 of the said Act, it was provided that where, in execution of any decree, any immovable property in which a debtor entitled to the benefits of the Act had an interest, had been sold on or after the 14th days of July, 1978, then notwithstanding anything contained in the Limitation Act 1963, and notwithstanding that the sale had been confirmed, any judgment debtor claiming to be entitled to the benefits of the Act, may apply to the Court within 90 days from the date of the publication of the Act in the Tamil Nadu Government Gazette, to set aside the sale and the court should, if it is satisfied that the applicant was a debtor entitled to the benefits of the Act, order the sale to be set aside and thereupon, the sale would be deemed not to have taken place at all. Before passing such an order, it was necessary to give notice to the auction purchaser and other persons interested in the sale. In the present case, the sale took place on 27-11-1978. The sale having taken place after 14-7-1978, S. 21 would prima facie apply. The third defendant filed the application only on 18-9-1979. Calculated from 13-6-1979, the last day for filing of the application would be 11-9-1979. There was thus a delay of seven days in filing the application.

2. In explanation of this delay, in the affidavit in support of the application it was stated -

'Today I am filing an application under S. 21 of the Act 40 of 1979. Under S. 21 of the Act of 1979, I ought to have filed the application on or before 13-9-1979. My advocate has been under the bona fide mistaken impression that since the Act had come into force on and from 15-7-1979. I am entitled to file that application till 15-10-1979. On the night of 14-9-1979, when we were preparing the petition, it had been noticed that 90 days have to be calculated from the date of publication of the Act and I ought to have filed the application before 13-9-1979. since 15th to 17th were holidays, I am filing this application today, 18th. Consequently, there is a delay of 4 days in filing the application under S. 21 of Act 40 of 1979. Hence I am filing this application to excuse the delay of four days in filing this application.

3. A counter affidavit was filed by the decree holder and the Court below held that the third defendant had not produced any affidavit from the advocate who had advised her wrongly, as was done in C. R. P. Nos. 1762 and 1763 of 1973 reported in P. S. Angaiya Raja v. A. K. D. Alagaraja, : AIR1977Mad142 . That decision appears to have been relied on, on behalf of the third defendant. The learned Subordinate Judge held that the application was not filed within time and that the application to excuse the delay could not be accepted. It is this order that is sought to be challenged by the third defendant in the present revision petition.

4. Mr. Ramalingam, learned counsel for the revision petitioner contended that there was a bona fide mistake on the part of the advocate who advised the third defendant and that in such a case, the delay should have been excused. For the respondent Mr. A. Shanmughavel contended (i) that the provisions of the Limitation Act did not apply to this case, and (ii) that, in any event, the delay has not been properly explained in the affidavit.

5. With reference to the first submission, learned counsel for the respondents referred me to the provisions of S. 21 of Tamil Nadu Debt Relief Act 40 of 1979. That section runs as follows -

'Where, in execution of any decree, any immovable property in which a debtor entitled to the benefits of the Act had an interest, had been sold or foreclosed on or after the 14th day of July, 1978, then, notwithstanding anything contained in the Limitation Act, 1963 (Central Act XXXVI of 1963) or in the Code of civil Procedure (Central Act V of 1908), and notwithstanding that the sale had been confirmed, any judgment debtor claiming to the entitled to the benefits of this Act, may apply to the court within 90 days from the date of the publication of this Act in the Tamil Nadu Government Gazette, to set aside the sale and the court should, if it is satisfied that the applicant was a debtor entitled to the benefits of this Act, order the sale to be set aside and thereupon the sale or foreclosure shall be deemed not to have taken place at all.'

According to him, the expression `notwithstanding anything contained in the Limitation Act, 1963' rules out of consideration the entire Limitation Act including S. 5 thereof. If so, in his submission, we are left only with S. 21 of the Act, which provides only a period of ninety days and so long as this application was not filed within that period, there is no question of the sale being set aside. For the petitioner, Mr. Ramalingam submitted that the relevant words, namely `notwithstanding anything contained in the Limitation Act, 1963' were introduced into the Act only to see that there was no conflict between S. 21 of the Act and Art. 127 of the Limitation Act. Art. 127 of the Limitation Act provides for a period of sixty (thirty?) days from the date of the sale, for setting aside the sale in execution of a decree, including any such application by a judgment debtor. As a different period was provided for in S. 21. the submission is that the words `notwithstanding anything contained in the Limitation Act, 1963' were introduced so as to get Art, 127 out of the way.

6. I consider there is substance in this submission. The Legislature did not completely rule out of consideration the entire Limitation Act. The words have to be understood only in the context of avoiding a conflict between the Limitation Act and s. 21 of the Tamil Nadu Debt Relief Act 40 of 1979. Further, there is also the expression `notwithstanding anything contained in the Code of Civil Procedure, 1908' occurring in this very section. It does not mean that the whole Code of Civil Procedure is to be excluded, in which event, the executing Court which functions under the Code will have no part to play. For the above reasons. I do not find it possible to accept this submission of Mr. Shanmughavel that the entire Limitation Act including S. 5 is barred from consideration in the present case.

7. As regards the second point of explanation regarding the delay, the relevant paragraph in the affidavit has already been extracted above. The contention of Mr. Shanmughavel is that the petitioner had gone to the advocate only on 14-9-1979 and that she could not have had any inkling of the advocate's impression prior to that date. As 14-9-1979 itself is outside the period of ninety days, there is no question of any condonation of delay because the entire delay is due to the laches on the part of the petitioner herself. For the petitioner who drafted the affidavit had himself argued in the court below that there was a mistake on his part. If really an affidavit from him was called for, or his evidence was to be recorded, he would have been in a position to explain the matter.

8. It is possible that there was some misapprehension on the part of the advocate that it was enough for him to explain the delay when he was arguing the case. It is not clear as to when the party approached him and when he gave the impression that the application had to be filed by 15-10-1979. As there is some likelihood of some mistake as to what the parties had to do. I think it proper to give the petitioner and opportunity to tender appropriate evidence in explanation of the delay in the court below. The petition is accordingly allowed and the matter, remanded to the executing court for taking evidence on the question of delay and dispose of the execution application in accordance with law. There will be no order as to costs.

9. Petition allowed.


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