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Subramanian Vs. Vellaiya Chetty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1982)2MLJ67
AppellantSubramanian
RespondentVellaiya Chetty
Excerpt:
.....case, that the failure on the part of the court below to mention their period for which the attachment is to continue will make the order invalid. venkatachari is that section 12(i) of act of 1980, which excludes any debt which represents price of property, whether movable or immovable purchased by a debtor or any amount under a hire purchase agreement from the categories of debt to which the act is applicable, cannot be applied to the facts of this case since a decree was passed for the payment of money and such decree cannot be brought under the exceptions set out in section 12. it is seen from the order as well as the pleadings in the suit that the amount for which the decree is passed represents the balance of sale consideration in respect of a property purchased by the..........have to examine whether the argument of mr. r.s. venkatachari that in spite of the fact that the decree debt represents the balance of sale consideration, the same can be construed as one for payment of money, for which the pro visions of act (xiii of 1980) will apply. but a reading of the definition of the term 'debt' occurring in section 3(c) of act (xiii of 1980) makes it clear that 'debt' includes a decree passed by court. section 3(c) reads as follows:'debt' means any liability in cash or in kind, whether secured or unsecured and whether decreed or not, but does not include arrears of taxes due to the central government or a state government or a local authority.6. as per section 3(c) of act (xiii of 1980), a decree for payment of balance of sale consideration can only be taken as.....
Judgment:

R. Sengottuvelan, J.

1. C.R.P. No. 3290 of 1980 is filed by the judgment-debtor against the dismissal of his application R.E.A. No. 376 of 1980 in O.S. No. 45 of 1974 claiming benefits under Act (XIII of 1980) while C.R.P. No. 3291 of 1980 is filed against the dismissal of R.E.A. No. 407 of 1980 in E.P. No. 66 of 1980 in O.S. No. 45 of 1974, filed under Section 47, Civil Procedure Code, to dismiss E.P. No. 66 of 1980 as the attachment of electric motor and pump-set is illegal. Since both the revisions arise out of the orders passed in the same execution petition and since the parties are the same, both the revisions are dealt with together. In C.R.P. No. 3291 of 1980, two contentions are raised by Mr. R.S. Venkatachari, learned Counsel for the petitioner. The first contention is, that when ' an execution petition is stayed under the provisions of the Tamil Nadu Indebted Agriculturists (Temporary Relief) Ordinance (I of 1975), attachment cannot be ordered to continue. In effect, his argument is that in view of Ordinance (I of 1975), by which all pending suits and execution proceedings against debtors will have to be stayed, the attachment already effected over the properties of, the debtor will have to be raised. Section 4 of Ordinance (I of 1975) runs thus:

All further proceedings in suits and applications of the nature mentioned in Section 3 in which relief is claimed against an agriculturist, not being proceedings for the amendment of pleadings or for the addition, substitution, or the striking off the parties, but otherwise inclusive of proceedings consequent on orders or decrees made in appeals revision petitions, or applications for review, shall subject to the next succeeding subsection, stand stayed until the expiry of a year from the date of the commencement of this Ordinance:

Provided that, in regard to property under attachment, the Court may pass such orders as it deems necessary for the custody or preservation of the property or for the sale of such property if it is subject to speedy or natural decay, or, if in respect of it, the expenses of custody or preservation are considered excessive.

2. On application made by the defendant or the respondent or by all the defendants or all the respondents, as the case may be, the stay effected by Sub-section (1) in a suit or application shall be dissolved and the suit or application shall be proceeded with from the stage which had been reached when further proceedings in the suit or the the application were stayed.

2. On a reading of Section 4 of Ordinance (I of 1975), it is seen that any suit or a proceeding in execution shall stand stayed until the expiry of a year from the date of the commencement of the Ordinance. Nowhere in the said Ordinance it is stated that the attachments effected prior to the coming into force of the Ordinance shall stand raised. On the other hand, the proviso to Section 4(1) of Ordinance (I of 1975) states that the Court may pass such orders as it deems necessary for the custody or preservation of the property under attachment. In view of Section 4(1) and the proviso thereunder, it cannot be said that the effect of Ordinance (I of 1975) is to raise the attachment already effected. Hence, this contention of the learned Counsel for the revision petition will have to be negatived.

3. The second contention raised by Mr. R.S. Venkatachari is that the order closing E.P. No. 91 of 1974, on 27th January, 1975, without directing the attachment to continue is illegal inasmuch as the Court under Order 21, Rule 57, Civil Procedure Code, must while dismissing the Execution Petition, direct whether the attachment will continue or not and must also indicate the period upto which such attachment will continue or the date on which the attachment shall cease. In other words, his contention is that inasmuch as no period is mentioned in the order of the Court below, the same is illegal and the attachment cannot be said to be in force in pursuance of such an illegal order. His further contention is that since the subsequent Execution Petitions, viz., E.P. Nos. 34 of 1977 and 73 of 1979, were closed without making any mention about the continuance of the attachment, there is no attachment over the property and as such, the Court below is wrong in directing the sale of the attached property.

4. While considering the above contentions, we will have to bear in mind the provision in Order 21, Rule 21, Civil Procedure Code, which enables the Court while dismissing an Execution Petition to order the continuance of the attachment. No doubt, an attachment cannot be continued indefinitely and this Court in several cases had expressed that such indefinite continuance of attachment cannot be made. But, in the present case, the Execution Petition was not closed after the attachment is ordered to continue suo motu by the Court and it is only in pursuance of Ordinance (I of 1975), the Execution Petition was closed and the attachment was allowed to continue. Even Section 4 of Ordinance (I of 1975), which I have extracted above, dealing with stay of proceedings, provides for continuance of the attachment and for safeguarding the attached property. It has to he noted, that Ordinance (I of 1975) had not prescribed1 any time limit for the continuance of the attachment. The proviso to Section 4 merely mentions that the Court may pass such orders as it deems necessary for the custody and preservation of the property under attachment. Further, the moratorium given to the indebted agriculturists under Ordinance (I of 1975) had been extended time and again by subsequent enactments, which prohibited filing of suits and execution petitions in respect of decrees already obtained. In view of the fact that the hands of the Court are tied by a series of enactments, which itself provided for the continuance of the attachment, it cannot be said, in the present case, that the failure on the part of the Court below to mention their period for which the attachment is to continue will make the order invalid. Further, the order directing the attachment to continue has not been questioned and it had become final. In view of the series of special Acts, which provide for stay of further proceedings in execution and continuance of the attachment, the order dated 27th January, 1975, cannot, be said to be illegal. Hence, the second contention also will have to be negatived.

5. With reference to C.R.P. No. 3290 of 1980, the contention raised by Mr. R.S. Venkatachari is that Section 12(i) of Act of 1980, which excludes any debt which represents price of property, whether movable or immovable purchased by a debtor or any amount under a hire purchase agreement from the categories of debt to which the Act is applicable, cannot be applied to the facts of this case since a decree was passed for the payment of money and such decree cannot be brought under the exceptions set out in Section 12. It is seen from the order as well as the pleadings in the suit that the amount for which the decree is passed represents the balance of sale consideration in respect of a property purchased by the defendant from the plaintiff. As such, the amount due in this case from the defendant representing the price of property purchased by a debtor, falls squarely under the exemption specified in Section 12(i) of Act (XIII of 1980). We have to examine whether the argument of Mr. R.S. Venkatachari that in spite of the fact that the decree debt represents the balance of sale consideration, the same can be construed as one for payment of money, for which the pro visions of Act (XIII of 1980) will apply. But a reading of the definition of the term 'debt' occurring in Section 3(c) of Act (XIII of 1980) makes it clear that 'debt' includes a decree passed by Court. Section 3(c) reads as follows:

'debt' means any liability in cash or in kind, whether secured or unsecured and whether decreed or not, but does not include arrears of taxes due to the Central Government or a State Government or a Local Authority.

6. As per Section 3(c) of Act (XIII of 1980), a decree for payment of balance of sale consideration can only be taken as a debt for the payment of balance of sale price which comes under the exemption under Section 12(i) of Act (XIII of 1980). In view of the definition of 'debt' which is said to include a decree of the civil Court. It is not possible to entertain the contention raised on behalf of the revision petitioner that merely because a decree is passed, the debt will cease to be one for payment of balance of sale consideration. Hence, I have no hesitation in negativing the contention raised by Mr. R.S. Venkatachari.

7. In the result, both the revisions are dismissed. There will be no order as to costs.


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