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Arumugha Gounder Vs. Kannammal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ167
AppellantArumugha Gounder
RespondentKannammal and anr.
Cases ReferredLakshminarasimha Rao v. Ganapati Muneyya
Excerpt:
- .....to be amended, the decree having been executed and having culminated in the sale of the judgment-debtors property. according to the learned district munsif, the decree merged in the court-auction sale. in this view, he dismissed i.a. no. 1902 of 1973. as for the other application filed under section 23-c, the learned district munsif held that the application did not lie under the section.2. against both the orders, the judgment-debtor appealed to the learned subordinate judge, tiruvannamalai, who, however, confirmed the decision of the court below. the judgment-debtor now carries both the matters in further appeals before this court.3. c.m.s.a. no. 184 of 1974 arises out of the dismissal of the judgment-debtor's application under section 23-c mr. n. srinivasan, learned counsel for the.....
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. Kannammal obtained a decree against Arumugha Gounder in a suit on a promissory note in O.S. No. 977 of 1967 on the file of the District Munsif of Tiruvannamalai. The decree was passed on 21st February, 1968 for Rs. 2,158-00 with further interest and costs. The decree-holder levied execution by proceeding against the immovable property of the judgment-debtor. The property was brought to sale on 13th June, 1973. One Shanmugham purchased it in the Court-auction for Rs. 1,751. Meanwhile, the judgment debtor had paid sums of money from time to time towards the decree, amounting in all to Rs. 2,100. The sale in favour of the auction-purchaser was yet to be confirmed, and at that stage, the judgment-debtor filed two applications before the District Munsif's Court, Tiruvannamalai. I.A. No. 1902 of 1973 was an application filed under Section 19 (1) of the Tamil Nadu Agriculturists Relief Act IV of 1938)?s amended by Act VIII of 1973 for scaling down the debt and for amendment of the decree. He also filed another application under Section 23-C of the same Act, as amended by Act VIII of 1973 for setting aside the sale in favour of the auction-purchaser. This application under Section 23-C was not numbered, but was dismissed by the learned District Munsif. The reason for dismissal will be clear by what the learned District Munsif did with reference to I.A. No. 1902 of 1973 filed by the judgment-debtor for amendment of the decree. The learned District Munsif held that the application for amendment of the decree did not lie because at that time there was no decree to be amended, the decree having been executed and having culminated in the sale of the judgment-debtors property. According to the learned District Munsif, the decree merged in the Court-auction sale. In this view, he dismissed I.A. No. 1902 of 1973. As for the other application filed under Section 23-C, the learned District Munsif held that the application did not lie under the section.

2. Against both the orders, the judgment-debtor appealed to the learned Subordinate Judge, Tiruvannamalai, who, however, confirmed the decision of the Court below. The judgment-debtor now carries both the matters in further appeals before this Court.

3. C.M.S.A. No. 184 of 1974 arises out of the dismissal of the judgment-debtor's application under Section 23-C Mr. N. Srinivasan, learned Counsel for the judgment-debtor, was unable to any in what manner the dismissal of the application was not in accordance with the law. The sale, admittedly, was hold on 13th June, 1973, subsequent to the publication of the amendment Act VIII of 1973 on 24th January, 1973. Hence, on the basis of the ruling in Bangaru Chettiar v. Son Basha Sahib and Anr. : AIR1977Mad1 . the application was clearly not maintainable under Section 23-C of the Act. C.M.S.A. No. 184 of 1974 must, therefore, be dismissed.

4. As for the other appeal, C.M.S.A. No. 183 of 1974 Mr. Srinivasan submits that both the Courts below were in error in holding that the judgment-debtor was rot entitled under the law to ask for sealing down of the debt and for amendment of the decree under Section 19 of Act IV of 1938 as amended by Act VIII of 1973 His contention was that the Courts below were wrong in their notion that an execution sale has the effect in law of extinguishing the decree. According to learned Counsel, a decree would be kicking and alive so long as full satisfaction has not been entered. He relied on an earlier decision of this Court reported in Muthuswamy Pillar v. Jaganadha Reddi : AIR1929Mad830 . for the general proposition that a decree can be amended to long as there is something in the decree to operate upon. In the particular case cited by the learned Counsel not only was there an execution of the decree, but even full satisfaction had been entered after levying prosecution. Even in such a case, it was held that it was no bar to an amendment of the decree.

5. Learned Counsel also referred to a more recent decision of this Court reported in Vannavilli Lakshminarasimha Rao v. Ganapati Muneyya : AIR1940Mad825 . which had expressed the view that an application for stay under Section 20 of Act IV of 1938 would lie even in a case where full satisfaction had been entered alter sale of the property of the judgment-debtor, if the property had not been delivered to the auction-purchaser. Learned Counsel also referred to Section 19 of the Act to say that there was nothing in the section or elsewhere in the Act which bars the application for amendment of the decree on the one and only ground that the property of the judgment-debtor had been brought to sale in execution of the decree.

6. Learned Counsel for the decree-holder and for the auction-purchaser, however, submitted that the judgment-debtor had by her own laches and delay allowed the property to be brought to sale and in those circumstances when the decree had not only been executed but had culminated in a sale of the property of the judgment-debtor, there was no question thereafter of seeking to amend the decree in execution of which the property itself had been brought to sale.

7. Having considered the respective submissions of the learned Counsel on either side, I am inclined to accept the contention put forward on behalf of the judgment-debtor by Mr. Srinivasan as well-founded.

8. The learned Subordinate Judge in his order had expressed the view that when the property of the judgment-debtor is brought to sale in execution of the decree, what happens is that the decree gets merged with the sale. I cannot understand the conception of a merger being employed to describe this process of execution. In my view, a decree passed by a Court is either executed or not executed. In either case, the decree does not simply vanish into thin air. The theory of merger is usually employed to denote what happens when an appellate Court either confirms or modifies or varies the decree of a lower Court. In these circumstances' it would be a proper use of the expression to say that the trial Court's decree gets merged with the appellate Court's decree. The conception of merger is appropriate where two things which get merged are of the same kind. It would be quite in appropriate to cover a case where, pursuant to a decree, the judgment-debtor's property is brought to sale. I go to the extent of saying that even where full satisfaction is entered and the property delivered over to the auction-purchaser, the decree cannot, in the proper sense of the expression, be said to merge with the sale and it cannot even be said to be 'extinguished' by the sale in execution. I must therefore, reject the reasoning of the Courts below.

9. Section 19 of Act IV of 1938 confers a right on the judgment-debtor, who is an agriculturist, to apply to a Court for scaling down a debt and for amending the decree in accordance therewith. There is nothing in this provision to suggest that an application thereunder would not lie in a case where pursuant to the decree the property of the judgment-debtor has been brought to sale and the auction-purchaser purchases it in the Court-auction. I cannot accept the thesis that the presence of the auction-purchaser with such rights as he may claim by virtue of his purchase in any way disentitles the judgment-debtor from invoking the provisions of Section 19 of the Act.

10. Even on general principles, the position would seem to be the same. Although the two decisions cited by Mr. Srinivasan are not directly ceases which arose either under Section 19 or under any of the other provisions of Act IV of 1938, the principles on which they are based are apposite for deciding the present case. In the earlier case in Munuswamy Pillai v. Jagannadha Reddi : AIR1929Mad830 . Ananthakrishna Ayyar, J., observed as under:

The moment a decree for money is passed, it is open to the judgment-debtor to pay the money into Court, say the day after the decree is passed. That does not mean that by so doing it disentitles the decree-holder from applying to the Court for amending the decree if the decree should be not in accordance with the judgment..

The learned Judge referred to an earlier decision of this Court reported in Munisamy Pillai v. Madhi Hussain Khan Sahib : (1910)20MLJ254 . in which a decree-holder applied for amendment of the decree after the decree was executed and full satisfaction entered. The Court held that it was open to the decree-holder to get the decree amended but he could do so only after vacating the order entering full satisfaction. In the case before Ananthakrishna Ayyar, J., although the decree sought to be amended was executed, full satisfaction had not been entered and the learned Judge allowed the application. In the end, the learned Judge granted the application for amendment. The implication of this decision is that an execution sale cannot in any manner destroy or extinguish the decree and an application for amendment would certainly lie with reference to that decree.

11. The other case cited by the learned Counsel, namely, Lakshminarasimha Rao v. Ganapati Muneyya : AIR1940Mad825 arose under this very Act IV of 1938. In that case, a simple money decree was executed by sale of the property of the judgment-debtor. The sale was confirmed in favour of the auction-purchaser, and what remained was for the auction-purchaser to obtain delivery of possession of the property. At that stage, the judgment-debtor filed an application under Section 20 of the Act and the question was, whether the judgment-debtor was entitled to an order of stay in the events that happened. It was suggested before Horwill, J., who heard the case that there was no execution pending at the time of the stay application and, therefore, no stay could be granted. The learned Judge held that the fact that the sale in execution of the decree had taken place and further that the sale had been confirmed in favour of the auction-purchaser does not mean that the execution proceedings are over. The learned Judge observed that delivery of property is the most important stage of execution and merely because full satisfaction has been entered, up, it does not mean that execution is at an end. It is but a step in the reasoning to say that if execution is not at an end merely for the reason that a sale in execution had taken place, the decree itself must be regarded as still existing and can by no means be regarded as non extent.

12. On the basis of the principles which I am able to extract from the aforesaid two decisions and on my reading of the scope and effect of Section 19 of Act IV of 1938, I am satisfied that the application filed by the judgment debtor in this case under Section 19(1) of the Act for scaling down of the debt and for amendment of the decree was maintainable and nonetheless so for the fact that at that moment the property of the judgment-debtor had already been brought to sale in execution of the decree.

13. For the reasons aforesaid, I allow C.M.S.A. No. 186 of 1974 and set aside the orders of the learned Subordinate Judge and the learned District Munsif. I.A.No. 1902 of 1973 will accordingly be restored to the file of the learned District Munsif and he is directed to go into the merits of the application in accordance with law. There will be no order as to costs in both these appeals.


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