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R. Dharmarajan Vs. Nagalinga Kandiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1975)2MLJ34
AppellantR. Dharmarajan
RespondentNagalinga Kandiar and anr.
Cases ReferredD. Ramakatayya v. T. Nagireddi
Excerpt:
- .....it is stated therein that an application for setting aside the sale can be made in respect of a sale held 'on or after the 30th september, 1947 and the sale has not been confirmed before the commencement of the said act, or ninety days have not elapsed from the confirmation of the sale or from the foreclosure, at such commencement.' the act referred to therein is the amendment act of 1948. in interpreting that clause viswanatha sastri, j., has held that the reference to the confirmation of the sale before the commencement of the act or within 90 days of such commencement, indicates that it was only sales held before the act that were within the contemplation of the legislature. i respectfully agree with the above view.6. this civil miscellaneous appeal therefore fails and the same is.....
Judgment:
ORDER

N.S. Ramaswami, J.

1. The question in this civil miscellaneous appeal is whether Section 23-C of Act IV of 1938 hereinafter referred to as the Act is applicable to ' an execution sale which took place after the commencement of the Tamil Nadu Agriculturists Relief (Amendment) Act 1972 herein after referred to as Act VIII of 1973. The money decree was passed on 27th October, 1971. In pursuance of the decree execution was taken and the property was sold on 19th September, 1973. It had been confirmed on 31st October, 1973. The application for setting aside the sale purporting to be under Section 23-G of the Act was filed on 21st January, 1974. The executing Court has dismissed the application holding that the said provision does not apply to a sale which took place after the publication of Act VIII of 1973. The said Act namely Act VIII of 1973, had been published in the Tamil Nadu Government Gazette on 24th January, 1973. Therefore the Court sale itself was very much subsequent to the publication of the said Act.

2. It is contended on behalf of the judgment-debtor, who is the appellant before me, that a proper reading of Section 23-C would make it applicable even to a sale which was held after the publication of Act VIII of 1973. The learned Counsel stressed the latter part of Section 23-C which prescribes the period within which the application can be made. It is pointed out that under that part of the section an application can be made within 90 days of the publication of Act VIII of 1973 or of the confirmation of the sale which ever is later and that the application in the present case being within 90 days of the date of the confirmation of the sale, though not within 90 days from the date of publication of Act VIII of 1973, the application has to be entertained.

3. A reading of Section 23-C as a whole leaves no room to doubt that it applies only to sales held after first March, 1972 but before, the publication of Act VIII of 1973. The relevant part of the section is as follows:

Where in execution of any decree, any immovable property in which any person entitled to the benefits of the Tamil Nadu Agriculturists Relief (Amendment) Act, 1972, had an interest, has been sold or fore-closed on or after the 1st March, 1972, and the sale has not been confirmed before the publication of the said Act in the Tamil Nadu Government Gazette, or ninety days have not elapsed from the confirmation of the sale or from the foreclosure at such publication....and notwithstanding that the sale has been confirmed, any judgment-debtor claiming to be entitled to the benefits of the said Act, may apply to the Court within ninety days of such publication or of the confirmation of the sale, whichever is later, to set aside the sale or foreclosure of the property.... ..

It is significant to note that in the first part of the section it is stated that the sale has to be after the first March, 1972 and the same should not have been confirmed before the publication of Act VIII of 1973 or ninety days have not elapsed from the confirmation of the sale or from the foreclosure at such publication. This clearly indicates that the sale which is sought to be set aside should have taken place prior to the publication of Act VIII of 1973. Then only the question of the sale not having been confirmed before the publication of the said Act or ninety days having not elapsed from such confirmation would arise. In[ the present case the sale itself had been held in September, 1973 that is about 8 months after the publication of Act VIII of 1973.

4. The judgment-debtor's remedy in the case of a decree as in the present case was to apply to the Court which passed the decree to scale down the decree under Section 19 of the Act. It is not in dispute that after the decree when the decree-holder took out execution the judgment-debtor had been taking part in the proceedings and he had been paying parts of the decree amount. He had not availed of the provision contained in Section 19 of the Act in getting the decree scaled down. Having failed to do so it is not open to him to file an application under Section 23-C for having the sale set aside, when the sale itself is very much after the publication of Act VIII of 1973.

5. The only direct authority brought to my notice is one-rendered by the Andhra High Court, in D. Ramakatayya v. T. Nagireddi (1957) A.L.T. 26 : (1957) 1 A.W.R. 142, in respect of Section 23-A of the Act. In that provision also there is a similar clause as in Section 23-C. It is stated therein that an application for setting aside the sale can be made in respect of a sale held 'on or after the 30th September, 1947 and the sale has not been confirmed before the commencement of the said Act, or ninety days have not elapsed from the confirmation of the sale or from the foreclosure, at such commencement.' The Act referred to therein is the amendment Act of 1948. In interpreting that clause Viswanatha Sastri, J., has held that the reference to the confirmation of the sale before the commencement of the Act or within 90 days of such commencement, indicates that it was only sales held before the Act that were within the contemplation of the Legislature. I respectfully agree with the above view.

6. This civil miscellaneous appeal therefore fails and the same is dismissed. There will be no order as to costs.


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