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Natesa Ayyar and anr. Vs. Singaravelu Pillai - Court Judgment

LegalCrystal Citation
Subject civil; arbitration
CourtChennai
Decided On
Reported inAIR1941Mad350
AppellantNatesa Ayyar and anr.
RespondentSingaravelu Pillai
Cases ReferredSundaralingam v. Venkataramanayya
Excerpt:
- .....proceedings were pending, the judgment-debtors filed a petition, o.p. no. 61 of 1939 before the debt conciliation board, negapatam, and in consequence of that the sale of the judgment-debtors' property which had already been proclaimed was stopped on 1st may 1939 presumably under the provisions of section 25, madras debt conciliation act, 1936. the judgment-debtors' petition, o.p. no. 61 of 1939 was dismissed by the debt conciliation board on 28th june 1939. after that dismissal, the decree-holder proceeded with execution and the sale of the properties was fixed to take place on 6th november 1939. the learned district munsif says that the judgment-debtors' pleader applied for an adjournment of the sale on the ground that he wanted time to raise the decree amount and accordingly the.....
Judgment:
ORDER

Burn, J.

1. This is an application to revise an order passed by the learned District Munsif of Negapatam on 13th December 1939 in E.A. No. 995 of 1939 in Small cause Suit No. 267 of 1937. The applicant before the District Munsif was the decree-bolder in the small cause suit. The petitioners in this case are the defendants in the small cause suit. The facts which it is necessary to mention are that while execution proceedings were pending, the judgment-debtors filed a petition, O.P. No. 61 of 1939 before the Debt Conciliation Board, Negapatam, and in consequence of that the sale of the judgment-debtors' property which had already been proclaimed was stopped on 1st May 1939 presumably under the provisions of Section 25, Madras Debt Conciliation Act, 1936. The judgment-debtors' petition, O.P. No. 61 of 1939 was dismissed by the Debt Conciliation Board on 28th June 1939. After that dismissal, the decree-holder proceeded with execution and the sale of the properties was fixed to take place on 6th November 1939. The learned District Munsif says that the judgment-debtors' pleader applied for an adjournment of the sale on the ground that he wanted time to raise the decree amount and accordingly the sale was adjourned to 27th November 1939. Instead of paying up the decree amount the judgment-debtors proceeded to file O.P. No. 197 of 1939 before the Debt Conciliation Board for the conciliation of the same debt and the Board intimated to the District Munsif that such a petition had been presented and requested the District Munsif to stay the sale proceedings in execution of the small cause decree. The decree-holder thereupon applied to the District Munsif to direct the sale advertised for 4th December 1939 to go on disregarding the fact that the judgment-debtors had filed an application before the Debt Conciliation Board. The decree-holder contended that the Debt Conciliation Board had no jurisdiction to stay the sale.

2. The learned District Munsif after considering such authorities as there are, decided to follow a decision of Stodart J. reported in In re Ellappa Chettiar ('40) 27 A.I.R. 1940 Mad. 31. The learned Judge held in that case that a judgment-debtor is not entitled to obtain a stay under Section 25, Madras Act, 11 of 1986, in any individual suit; or proceeding more than once. It was argued before the learned Judge that upon a second application to the Conciliation Board the judgment-debtors were again entitled to stay. The learned Judge thought that to admit such a proposition would lead to absurd results. There was nothing he said in the Act to prevent a debtor filing one application after another, and if under Section 25 of the Act, he could obtain stay of the suit or other proceedings as long as an application was pending before the Board he would be enabled to put his opponent to great trouble and inconvenience suffering little if any expense himself. That in the opinion of the learned Judge was not the intention of the law. This it may be said is the only direct decision upon this point so far pronounced.

3. In the case reported in Hirannayya v. Thippeswami ('89) 26 A.I.R. 1939 Mad. 215, Stodart J. and myself held that Section 25 of the Act was mandatory and that a sale in execution held in violation of the provisions, of Section 25 is void. Learned Counsel for the petitioners relies strongly upon this decision which he says has been followed by other learned Judges. It does not however deal with the question with which this petition is concerned, namely whether the Court of the District Munsif of Negapatam can be compelled to stay execution proceedings in respect of the same judgment-debt more than once under the provisions of the Madras Debt Conciliation Act. Learned Counsel for the petitioners has referred me to a case decided by Wadsworth J. in Roopchand Merlacha v. Sha Motaji Mokanji ('40) 27 A.I.R. 1940 Mad. 791, but that case also does not touch the point now in issue. That was a case in which an application under Section 4, Madras Act 11 of 1936 had been rejected under the provisions of Section 7 of the Act. The second part of Section 7 says:

The rejection, of an application under this section shall not preclude the applicant from making a fresh application.

4. The learned Judge therefore held that although the statutory bar imposed by Section 25 of the Act would cease to operate immediately upon the dismissal of an application under Section 7, yet upon a re-presentation of the application under the authority given by the second part of that section the bar would again come into operation. That is not the case with which I have to deal. Learned Counsel has also referred me to a case decided by Horwill J. and reported in Sundaralingam v. Venkataramanayya ('40) 27 A.I.R. 1940 Mad. 917. In that case the learned Judge held that even though an application might be frivolous or vexatious nevertheless under Section 25 of the Act, the Court would be bound to stop all further proceedings in connexion with the debt which was being considered by the Conciliation Board. There is no question there of successive petitions by the same debtor in respect of the same debt.

5. After considering the matter as well as I am able I find myself practically in agreement with Stodart J. It has been pointed out to me by Mr. Desikan for the respondent that the wording of Section 4, Sub-section (1) is : 'a debtor may make an application for the settlement of his debts....' He has also pointed out that when an application is dismissed under Section 9 of the Act, there is no provision in Section 9 or elsewhere in the Act, similar to the second part of Section 7. Section 7 provides for the rejection of an application if it does not comply with any of the requirements mentioned in Sections 5 and 6. These requirements are all matters of a formal nature, and the meaning of the provision in the second part of Section 7 appears to be that if an application has to be rejected merely for want of some formality, the debtor should not be precluded from bringing a fresh application. The absence of any provision for a fresh application with regard to the same debt when the application has been dismissed on the merits would seem to indicate that in such cases the Legislature did not contemplate a fresh application by the same debtor. To suppose that a debtor may go on without limit making successive applications for the settlement of his debts under Section 4 and thereby causing an executing Court to stay its hand under Section 25 is equivalent to supposing that the Legislature intended to put it in the power of a debtor to postpone execution of a decree against him to the Greek Kalends. I cannot believe that the Legislature intended debtors to be allowed to make more than one effective application for the conciliation of a particular debt under the provisions of this Act. The presence of the provision in Section 7 by which an applicant can make a fresh application if his application has been rejected on formal grounds and the absence of any similar provision in Section 9 appear to me to be conclusive on this point. For this reason I think the learned District Munsif was right in following the decision of Stodart J., and in holding that stay could not be ordered more than once under Section 25 in respect of the same debt. This petition is accordingly dismissed with costs.


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