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Balakrishna Gounder Vs. V.A. Vadivel Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1980)1MLJ153
AppellantBalakrishna Gounder
RespondentV.A. Vadivel Mudaliar and anr.
Cases ReferredMargachari v. Krishnaswamy Mudaliar
Excerpt:
- s. padmanabhan, j.1. the civil revision petition has been preferred by the judgment-debtor against the order in r.e.a. no. 157 of 1977 in r.e.p. no. 82 of 1974 in o.s.no. 19 of 1969 on the file of the court of the subordinate judge of krishnagiri.2. the first respondent vadivel mudaliar obtained a money decree against the petitioner in o.s.no. 19 of 1969. the decree was amended. after the amendment the decree-holder brought the properties to sale in execution of the decree. at the court-auction sale held on 16th january, 1975, the second respondent purchased the property. on the date on which the court-sale took place the tamil nadu indebted agriculturists (temporary relief) ordinance, 1975 (ordinance no. 1 of 1975) (hereinafter called ordinance no. 1 of 1975) was in force. under section.....
Judgment:

S. Padmanabhan, J.

1. The civil revision petition has been preferred by the judgment-debtor against the order in R.E.A. No. 157 of 1977 in R.E.P. No. 82 of 1974 in O.S.No. 19 of 1969 on the file of the Court of the Subordinate Judge of Krishnagiri.

2. The first respondent Vadivel Mudaliar obtained a money decree against the petitioner in O.S.No. 19 of 1969. The decree was amended. After the amendment the decree-holder brought the properties to sale in execution of the decree. At the Court-auction sale held on 16th January, 1975, the second respondent purchased the property. On the date on which the Court-sale took place the Tamil Nadu Indebted Agriculturists (Temporary Relief) Ordinance, 1975 (Ordinance No. 1 of 1975) (hereinafter called Ordinance No. 1 of 1975) was in force. Under Section 4 of Ordinance No. 1 of 1975 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 of parties shall stand stayed until the expiry of a year from the date of the commencement of this Ordinance. Therefore, the petitioner filed R.E.A. No. 157 of 1977 for a declation that the sale held on 16th January, 1975, pursuant to R.E.P. No. 82 of 1974 was contrary to Section 4 of Ordinance No. 1 of 1975 and was null and void. Certain other grounds were also taken by the petitioner viz., that the petitioner was not served with any notice of sale and that the thumb impression found in the sale notice purporting to be that of the petitioner was a forgery. The second respondent being only the grandson of the first respondent and under the care and custody of the first respondent, the purchase in Court-auction by the 2nd respondent was really for the first respondent and inasmuch as the first respondent had not obtained the permission of Court the sale was void. The application was filed on 20th April, 1977.

3. The first respondent in his counter-affidavit stated that the Ordinance No. 1 of 1975 was promulgated only in the evening of 16th January, 1975, and since the sale took place without knowledge of the promulgation of the Ordinance the sale was valid. It is further stated that the petitioner not having filed an application for stay of the sale as provided for under Section 4(1) of the Ordinance No. 1 of 1975 the sale could not be said to be void. The petitioner was duly served with sale notice and the second respondent purchased the property of his own accord. The second respondent had nothing to do with the first respondent. It was also stated in the counter-affidavit that since the application was filed beyond 30 days from the date of sale the application was barred by limitation.

4. In this counter affidavit the second respondent has stated that the sale took place at 3 P.M. on 16th January, 1975, while the Ordinance was promulgated only in the evening. He also denied the allegation of the petitioner that he was not served with sale notice. According to him he purchased the property in auction for his own benefit and that there was no necessity for him to obtain leave of Court under Order 21, Rule 72, Civil Procedure Code.

5. The execution Court dismissed the application. The learned Subordinate Judge took the view that there was no provision in the Ordinance that if any sale was held in contravention of these provisions the sale was void. Section 4 of Ordinance No. 1 of 1975 was only an enabling provision and the petitioner if so desired ought to have filed an application under Section 4 of Ordinance No. 1 of 1975 and he not having filed any such application he could not be heard to contend that the sale was a nullity.

6. The learned Subordinate Judge also found that the petitioner was served with sale notice relying on the evidence of R. Ws. 1 and 2.

7. Further, the execution Court also rejected the contention that the second respondent was only a nominee of the first respondent and that the sale was void inasmuch as the second respondent had not obtained leave to bid under Order 21, Rule 72.

8. Lastly, the learned Judge held that Article 127 of the Limitation Act applied to the facts of the case and that therefore the application was barred by limitation.

9. The learned Counsel for the revision petitioner Mr. V. Krishnan pressed before me only the following two contentions:Firstly, Ordinance No. 1 of 1975 must be deemed to have come into effect at the zero hour on 16th January, 1975, and that consequently when the Court sale took place on 16th January, 1975, the ordinance was already on the statute book. Secondly, under Section 4 of the Ordinance No. 1 of 1975 the execution proceedings against all agriculturists stood stayed. In the circumstances the Court had no jurisdiction to hold the sale contrary to the mandatory provision of Section 4 of Ordinance No. 1 of 1975. In the circumstances, the Court sale so held is null and void and no title passed to the auction-purchaser.

10. In reply, Mr. R.S. Venkatachari made the following submissions. It is wrong to assume that by virtue of the provisions of Section 4, Ordinance No. 1 of 1975 all proceedings stood automatically stayed. A reading of Section 4, according to the learned Counsel, would show that only proceedings against agriculturists stood stayed. Therefore, before a person could take advantage of the provisions of Section 4 he ought to plead and prove before the Court by means of an application that he was an agriculturist and that he was entitled to the benefits of Section 4 of Ordinance No. 1 of 1975 and that the proceedings should be stayed. Inasmuch as the petitioner had not filed any such petition it shall not be open to him now to contend that the sale is null and void.

11. Secondly, Mr. R.S. Venkatachari argued that the conduct of a sale that took place on 16th January, 1975, could not come within the purview of Section 4 of Ordinance No. 1 of 1975 Prior to promulgation of the Ordinance the execution Court had passed an order to proclaim and sell the property. The sale that took place on 16th January, 1975 was only an administrative act and could not be said to be a proceeding within the meaning of Section 4 which had to be stayed in terms thereof. Thirdly, the learned Counsel stated that in any event the sale could not be said to be null and void but only voidable at the instance of the judgment-debtor. Consequently, the petitioner ought to have filed an application within 30 days as provided for under Article 127 of the Limitation Act to set aside the sale. In that view, the application filed by the petitioner was barred by limitation. Lastly, the learned Counsel contended that the Ordinance No. 1 of 1975 was a temporary enactment valid for one year and that it had expired by course of time. In the circumstances, it must be deemed that Ordinance No. 1 of 1975 had never been on the statute book. Therefore, the petitioner cannot now take advantage of the provisions of Section 4 and say that by reason of Section 4 the Court sale held on 16th January, 1975 was a nullity.

12. The learned Counsel for the second respondent while adopting the arguments of Mr. R.S. Venkatachari made a further plea that the Ordinance came into force only on the evening of 16th January, 1975 and was therefore not in force at 3 P.M. at the time the sale was held.

13. Ordinance No. 1 of 1975 was published in the Tamil Nadu Government Gazette (Extraordinary) Part IV, Section 2, page 15. dated 16th January, 1975. Section 1(3) stated that it had to come into force at once. There cannot be any dispute that the Ordinance was published in the Gazette on 16th January 1975 and that the Ordinance itself stated that, it would come into force forthwith.

14. Section 36 of the English Interpretation Act, 1889, reads as follows:

36(1). In this Act, and in every Act passed either before or after the commencement of this Act, the expression 'commencement' when used with reference to an Act, shall mean the time at which the Act comes into operation.

(2) Where an Act passed after the commencement of this Act, or any Order in Council, order, warrant, scheme, letters patent, rules, regulations or bye-laws, made granted, or issued under a power conferred by any such Act is expressed to come into operation on a particular day, the same shall be construed as coming into operation immediately on the expiration of the previous day.

15. In Maxwell on the Interpretation of Statutes, 10th Edition, page 409, it is stated as follows:

A statute takes effect from the first moment of the day on which it is passed, unless another day be expressly named, in which case it comes into operation immediately on the expiration of the previous day.

In Craies on Statute Law, Sixth Edition, page 383, the law is stated as follows:

When no other date is fixed by an Act for its coming into operation it is in force from the beginning of the day on which it receives the royal assent. It is a common practice to specify in Acts of Parliament the day on which Act is to come into operation. There is often an 'appointed day, clause in an Act as for instance in the Criminal Justice Act, 1962, Section 21(3). The Interpretation Act, 1889, Section 36(2) provides that Acts passed after 1889, and Orders in Council, orders, warrants, schemes letters patent, rules, regulations or bye-laws made under such Acts, if expressed to come into operation on a particular day, are to be read as coming into operation immediately on the expiration of the previous day.

The footnote on the same page contains the following passage:

It thus recognizes the well-known maxim that the law takes no notice of the fractions of a day, and except there are conflicting rights between subject and subject for the determination of which it is necessary to ascertain the actual priority, such is the universal rule. An Act which comes into operation on a given day becomes law as soon as the day commences. A child born at any time during 10th August, was born after the passing of the Act (which was 10th August) which in contemplation of law, took place as soon as the clock began to strike twelve on the night of 9th August.

16. Section 5(13) of the General Clauses Act, 1897 (Central Act X of 1897) defines 'commencement' as 'commencement' used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes into force.' Section 5(3) of the same Act states: 'Unless the contrary is expressed a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement'.

17. There is no provision in the Tamil Nadu General Clauses Act corresponding to Section 5(3) of the Central Act (X of 1897).

The definition of 'commencement, in Section 3(7) of the Tamil Nadu Act runs thus: 'Commencement' used with reference to an Act, shall mean the time at which the Act comes into force.

18. Thus, there is some difference in the wording between the General Clauses Act (Central Act X of 1897) which is the same as the Imperial Interpretation Act and the Tamil Nadu General Clauses Act 1891, (Madras Act I of 1891). However, the principles applied by Courts in interpreting the provisions of the Central Act on the question of commencement of a particular Act have been applied to the provisions of the Tamil Nadu General Clauses Act, 1891 as well.

19. In Chenchiah and Ors. v. The Commissioner of Police, Madras and Ors. : (1947)1MLJ190 the question that arose for consideration was the date of commencement of Madras Ordinance No. 1 of 1947. On 23rd January, 1947 at about 4.30 or 5 A.M. twelve persons were arrested by the police officers. They were not informed of the fact they were arrested or under whose orders or under what provisions of law they were arrested. Later in the day Ordinance No. 1 of 1947 was published during working hours by the Government Press in Fort St, George Gazette. The said Ordinance empowered the Provincial Government or the Chief Presidency Magistrate to issue an order for the detention of any person, if the provincial Government or the Chief Presidency Magistrate, as the case might be, was satisfied that it was necessary to detain that person with a view to prevent him from acting in any manner prejudicial to the public safety, or to the maintenance of public order. The arrested persons filed habeas corpus petitions in this Court, which were heard and disposed of by a Bench of this Court. On the side of the prosecution, the validity of the arrest and detention was sought to be maintained on the basis of the provisions of Ordinance 1 of 1947. The question that was projected for consideration before the Bench was whether the arrest of the petitioners were illegal because at the time of their arrest, Ordinance 1 of 1947 had not become law. Horwill, J., speaking for the Bench, stated as follows:

It is well settled that an Act which comes into force on a particular day is deemed to have effect from the first moment of that day Applying the principle to the facts of this case, the Ordinance must be deemed to have had effect from midnight on the night of the 22nd, 23rd which means that it was in operation at the time when the petitioners were arrested. It is unnecessary to cite authorities for the proposition that a statute begins to operate from the first moment of the day on which it becomes law; because the learned advocate for the petitioners does not in general deny it. That the law in India on this subject is the same as in England is indicated by a decision of this Court in In re Court-fees, in which case the Government announced an increase in Court-fees on the 5th May, 1922, which was not published until after certain suits had been filed on the Original Side of the High Court. It was nevertheless held that the plaintiff was bound to pay the enhanced court-fee on the plaints filed by him on that day.

The learned advocate for the petitioners has pointed out the difference between the wording of Section 3(12) of the Imperial General Clauses Act and that in Section 3(7) of the Madras General Clauses Act in the definition of the word 'commencement' as used with reference to an Act or Regulation. Whereas the Imperial General Clauses Act defines 'commencement' as meaning the day on which the Act or Regulation comes into force, the Madras Act with which we are here concerned defines 'commencement' as meaning the time at which the Act comes into force. There is no reason, however, to think that the Madras Legislature in framing the definition of 'commencement' meant to give a different meaning to that word from that given by the Imperial Government and to depart from the long-recognised interpretation, whereby fractions of a day are ignored and the statute is deemed to come into force at the first moment of the day on which it becomes law.

20. In Commissioner of lncome-tax, Punjab v. R.B. Jodha Mal Kuthiala : [1966]59ITR753(SC) the point for decision was as to the precise point of time when the Income-tax (Amendment) Act (VII of 1939) came into force. The Amendment Act was brought into force on 1st April, 1939. Relying on Section 5(3) of the General Clauses Act (Central Act X of 1897) the Supreme Court held:

The Amendment Act VII of 1939 must be deemed to have come into operation at a point of time immediately on the expiration of the day preceding its commencement.

21. It is therefore clear that it is one of the many recognised canons of interpretation that fractions of a day should be ignored and the statute must be deemed to have come into force on the first moment of the day on which it becomes law. Applying this principle it is clear that Ordinance No. 1 of 1975 came into force on the expiration of 15th January, 1975. In the circumstances, at the time the sale was held at 3 P.M. on 16th January, 1975 Ordinance No. 1 of 1975 must be deemed to have been on the statute book. I have therefore no hesitation in rejecting the contention advanced by the learned Counsel for the second respondent auction-purchaser that Ordinance No. 1 of 1975 came into force only on the evening of 16th January, 1975 and was therefore not in force at 3 P.M. at the time the sale was held.

22. The next question for consideration is the legal effect of the court-sale held contrary to the terms of Section 4 of Ordinance No. 1 of 1975. Before dealing with Section 4 it is necessary to extract it. Section 4 reads as follows:

4. (1) 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 of parties, but otherwise inclusive of decrees made in appeals, revision petitions, or applications for review, shall subject to the next succeeding sub-section, 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 application were stayed.

A combined reading of Sections 3 and 4 leaves no room for doubt that the Legislature intended that all further proceedings and applications for execution of a decree for payment of money passed in a suit for recovery of a debt against an agriculturist shall stand stayed. The direction contained in Section 4 is mandatory and does not leave any discretion on the part of Court to disregard the provisions of Section 4.

23. In Ramanathan Chettiar v. Ramaswami Pillai : AIR1957Mad780 , Section 3 of the Madras Indebted Agriculturists Temporary Relief Act, 1954, arose for interpretation. Section 3 of the said Act banned the institution of suits for recovery of debts in cases where any of the debtors was an agriculturist. The Act came into force on 6th February, 1954. The suit was instituted on 2nd December, 1954. The period prescribed by Section 3 of the Act as eventually amended came to an end on 1st March, 1955. The suit was dismissed on 19th July, 1955. Meanwhile, Madras Indebted Agriculturists (Repayment of Debts) Act, 1955, came into force on 1st March, 1955. It was contended that inasmuch as pending the suit instituted in contravention of Section 3 of Act V of 1954, the later enactment Act I of 1955 came into force which regulated the manner of disposal of suits the suit should have been disposed of according to the provisions of the later enactment. Rajagopalan, J., held that 'section 3 of the Madras Indebted Agriculturists (Temporary Relief) Act, 1954 (since spent out) banned the institution of suits for recovery of debts in cases where any of the debtors was an agriculturist, subject to the exceptions and period prescribed. Any suit instituted in contravention of the section should and could be dismissed though there was no specific provision to that effect in the Act. The later enactment could apply only to suits validly instituted.

24. This decision was followed by Ismail, J., in dealing with Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 (Tamil Nadu Act X of 1975) in (Saradam Ammal v. S.M. Veerappa Chettiar) C.R.P. No. 2789 of 1977. A short report of the judgment is found in (1978) T.L.N.J. 75, where the law is stated thus:

It is not disputed that Act X of 1975 applies to the case and the suit itself was instituted subsequent to the coming into force of the said Act. In view of this, the suit was rightly dismissed and the said dismissal is warranted by a decision of this Court Ramanathan Chettiar case : (1957)2MLJ267 : Hence the civil revision petition is dismissed.

25. The validity of a Court-auction sale held contrary to the provisions of the Tamil Nadu Agriculturists Relief Act (IV of 1938) was considered by Ramanujam, J. in C.M.S.A. No. 144 of 1975 decided on 4th October, 1976. A short report of the judgment of Ramanujam, J., is contained in 1976 T.L.N.J. 367. There, a mortgage had obtained a mortgage decree against the mortgagor and had applied for the sale of the hypotheca. The properties were brought to sale on 7th August, 1972 and 21st November, 1972 The sale could not be held. for want of bidders. Thereafter the mortgagee decree-holder obtained permission to bid and set off. Then the judgment-debtor filed an application under Section 20 of Act IV of 1938 for stay of execution for the purpose of enabling her to file an application under Section 19 of the Act for scaling down the debt. While that application was pending the property was sold on 25th June, 1973, as per schedule and the decree-holder became the auction-purchaser. Thereafter, the judgment-debtor's application under Section 20 of the Act was dismissed and the sale was confirmed on 25th August, 1973. Then the decree-holder - auction-purchaser sold the property to a third party on 23rd September, 1973. On 26th November, 1974, the judgment-debtor filed an application to set aside the sale under Section 47, Civil Procedure Code, on the ground that the Court had no jurisdiction to direct the sale of the property when his application for stay of execution of the decree under Section 20 of the Act IV of 1938, was pending and that the sale was void and inoperative in law. It was contended before this Court by the auction-purchaser that Section 20 of Act IV of 1938 did not bar the jurisdiction of the executing Court to execute the mortgage decree by the sale of the hypotheca and that the mere pendency of an application under Section 20 did not take away the jurisdiction of the executing Court. It was also contended that, though Section 20 uses the word 'shall' it cannot in any sense be treated as mandatory, that on a correct interpretation of the said provision it should be taken only to be directory and that the provisions of the Tamil Nadu Act IV of 1938 not having invalidated specifically, the orders passed in violation of Section 20, it should be taken that Section 20 is only directory and not mandatory. In this connection, it will be useful to refer to Section 20 of Act IV of 1938 before the views of Ramanujam, J., are referred to. Section 20 reads:

'Every Court executing a decree passed against a person entitled to the benefits of this Act, shall on application, stay the proceedings until the Court which passed the decree has passed orders on an application made or to be made under Section 19. (Proviso omitted)

Ramanujam, J., held thus: 'Section 20 makes it obligatory on the Court to stay the execution proceedings on an application made by the judgment-debtor, claiming the benefits under the Act. The section uses the expression 'shall on application stay the proceedings'. The above expression rules out any discretionary power on the part of the executing Court either to stay the proceedings or not. The section seems to suggest that once an application for stay of the execution is filed by the judgment-debtor claiming benefits under the Act, it is obligatory on the part of the Court to decide the question whether the judgment debtor is an agriculturist and is otherwise entitled to the relief under the Act and to stay the execution proceedings if it is found in the affirmative. Having regard to the language used in Section 20 of the Act and the object with which it is made, it can easily be taken that the jurisdiction of the executing Court to execute the decree is suspended or kept in abeyance once an application for stay of execution is filed under Section 20 claiming benefits of the Act, until the said application is disposed of. Section 20 can therefore be treated as a letter on the power of the executing Court to execute as against an agriculturist. If in a particular case the executing Court proceeds to execute the decree ever-looking the said letter imposed by Section 20, it can be taken to have acted without jurisdiction.'

26. In fact, in Dorairajan v. Mohammed Kuthoose 87 L.W. 877 Natarajan, J. has held that a reading of Section 20 of the Act IV of 1938 clearly shows that a mandatory direction is given to the executing Court to stay the execution of the decree whenever a judgment-debtor files an application under Section 20 of the Act and represents that he has already filed or that he is contemplating filing an application under Section 19 of the Act before the Court which passed the decree for scaling down the debt. No doubt, Ramanujam, J., has diluted the observation of Natarajan, J. to a certain extent by holding that before directing the stay of execution as required by Section 20 the executing Court must prima facie consider the application claiming that he is entitled to the benefits of the Act though that decision may not be conclusive.

27. If the correct interpretation with regard to Tamil Nadu Act IV of 1938 is that the auction sale held in violation of Section 20 of the said Act is void and inoperative, it should all the more be so in the case of a Court sale held in violation of Section 4 of Ordinance No. 1 of 1975. The whole scheme of Ordinance No. l of 1975 is to give relief to agriculturists from the pressure of their creditors and to enable them to rehabilitate themselves. The very basis of promulgating an Ordinance without resort to the Legislature was that it was thought necessary in the interests of the general public that the agriculturists be spared the distractions and expenditure involved in litigation launched by their creditors, in order that the maximum possible advantage may result to the State in the matter of production of food crops and if the matter be delayed there was likely to be a large recourse to Courts of law on the part of creditors and other circumstances rendered it necessary for the State to take immediate action to provide temporary relief to the indebted agriculturists. It was in these circumstances that the Ordinance came to be passed. Section 4 reads as already stated that further proceedings in suits and applications in the nature mentioned in Section 3 in which relief is claimed against an agriculturist shall stand stayed. The applications in the nature mentioned in Section 3 are applications for the execution of a decree for payment of money passed in a suit for recovery of a debt. Therefore, by force of Section 4 there was an automatic stay of execution proceedings. In other words, Section 4 in effect amounted to an injunction or a prohibition on the part of civil or revenue Court from proceeding with applications for the execution of a decree for payment of money passed in a suit for the recovery of a debt against an agriculturist. There is no difficulty in coming to the conclusion that the provision is mandatory when the nature and object of the Ordinance and the purpose for which the Ordinance was promulgated are kept in mind. I therefore hold that the Court-sale that took place in the instant case was violative of the mandatory provisions of Section 4 of Ordinance No. 1 of 1975 and therefore void and inoperative.

28. Mr. R.S. Venkatachari contended that the effect of Section 4 of the Ordinance No. 1 of 1975 was not to make the Court-sale held in violation of the terms thereof void and inoperative. It would be necessary on the part of the judgment-debtor to file an application for stay of the execution proceedings by invoking the aid of Section 4 and by proving that he was an agriculturist entitled to the benefits of the Act. So long as no application was filed it would be open to the Court to proceed with the execution application and if pursuant to such execution proceedings a sale took place it could not be said that the sale was null and void. Further, if notwithstanding the provisions of Section 4 a sale took place, it would be open to the judgment-debtor to file an application under Order 21. Rule 90, Civil Procedure Code, within 30 days of the sale on the ground that the sale took place in violation of the terms of Section 4 of Ordinance No. 1 of 1975 and that consequently the sale was liable to be set aside. I am unable to agree. I am unable to comprehend how an application under order 21, Rule 90, Civil Procedure Code, could be maintained to set aside a sale which had taken place contrary to the terms of Section 4 of Ordinance 1 of 1975. An application under Order 21, Rule 90 Civil Procedure Code, could be filed to set aside a sale on the ground of material irregularity or fraud in publishing or conducting it. Therefore, that provision does not and could not take in a violation of the mandatory provision of Section 4 of Ordinance No. 1 of 1975 as a ground for maintaining an application for setting aside the sale, have therefore no hesitation to reject the plea of Mr. R.S. Venkatachari that the revision petitioner should file an application under Order 21, Rule 90, Civil Procedure Code, to set aside the sale.

29. Similarly, there is no substance in the plea that the judgment-debtor should have filed an application for a stay of the execution proceedings invoking the aid of Section 4 of Ordinance No. 1 of 19/5. The language of Section 4 does not call for an application on the part of the judgment-debtor or any other person requesting the Court to stay the proceedings referred to in the said section. The Legislature itself has stayed all suits and proceedings of the nature referred to in Section 3. Therefore the moment the Ordinance is published all proceedings referred to in Section 4 became automatically stayed. The Court would have no jurisdiction to proceed with any such suit o-application to which Section 4 would be attracted.

30. Any other contention of Mr. R.S. Venkatachari was when once an order is passed by the executing Court under Order 21, Rule 64 directing the sale of the property the further conduct of the sale is only a ministerial act and therefore the sale held on 16th January, 1975, could not be said to come within the mischief of Section 4 of Ordinance No. 1 of 1975. There is no substance in this contention as well, and has to be stated only to be rejected. No authority has been cited before me that when once a sale is ordered under Order 21, Rule 64, Civil Procedure Code, the execution proceedings come to a close and that the holding of the sale is only a ministerial or an administrative act. The sale it self is held by the Court in execution of the decree. therefore, it is not possible to accept the contention of the learned Counsel that there is anything else to be done by the executing Court when once an order for sale is passed under Order 21, Rule 64, Civil Procedure Code.

31. Apart from that, for interpreting Section 4 of Ordinance No. 1 of 1975 it is not relevant to consider whether the proceeding that is pending is ministerial or administrative. All applications in execution of a decree for the repayment of a debt shall stand stayed. In this particular case, R.E.P. No. 82 of 1974 was pending on the file of the Sub-Court and when once the Act came into force the said execution petition get automatically stayed.

32. It will be useful to refer in this connection to the decision in Kannan v. Krishnan Nair (1958) K.L.T. 669 : I.L.R. (1958) Ker. 1018 which related to a case under the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act (V of 1954) On a Court-auction sale held on 25th January, 1954, a stranger purchased the property in auction. The sale was confirmed on 1st March, 1954. An application was filed to annual the sale on the ground that the sale took place in contravention of the provisions of Act V of 1954 which came into force on 6th February, 1954. It was contended that the sale took place before the Act was enacted, but the confirmation was made subsequent to the Act. It was contended on behalf of the auction-purchaser before the High Court that Section 4 of the Act relating to the stay of proceedings contained no inhibition against the confirmation of the Court sale which had taken place before the Act came into force. The contention was advanced on the basis that the confirmation of the sale was only a ministerial act. In meeting this contention Koshi, C.J. speaking for the Bench stated as follows:

The learned District Judge thought that it was merely a ministerial act and therefore not hit by the section. To our minds the distinction between judicial and ministerial acts would appear to be is irrelevant. The language of the section makes no such distinction, and it is comprehensive enough to include both. No doubt, normally, in the absence of an application to annual the sale on any ground the Court which held the sale is bound to confirm it, but the point for decision is as stayed above whether confirmation of a sale is a proceeding in the application for the execution of a decree. The Court's volition is required to effect the continuation and that to our minds, as observed by Patanjali Sastri, J. (as he then was), in Narayanaswami v. Rudrappa 'is part : AIR1944Mad314 of the proceedings to execute the decree in the sense that it relates to the discharge or satisfaction of the decree'. It is a recognised canon of interpreting ameliorative statutes like the one before us that their words must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved (see Reguraj Singh v. Hari Krishna and Rai Ram Taran v. Mrs. Hill .

33. The next contention of Mr. R.S. Venkatachari was that the application filed by the judgment-debtor to have the sale set aside under Section 47,Civil Procedure Code was barred by Article 127 of the Limitation Act. When once it is found that the Court had no jurisdiction to proceed with the sale in execution of a decree for repayment of a debt against an agriculturist under Section 4 of Ordinance No. 1 of 1975 and that such a sale if held would be void and inoperative against the judgment-debtor, there is no question of the judgment-debtor seeking to have the sale set aside. As a matter of fact, the prayer in the application is for a declaration that the sale held on 16th January, 1975 was null and void. In the circumstances. Article 127 of the Limitation Act which prescribes a period of 60 days from the date of the sale for an application to set aside a sale in execution of a decree does not come into play. In order that Article 127 may apply, the sale must be binding on the applicant till it is set aside. Where the sale is void and not binding on the judgment-debtor it need not be set aside and can be disregarded without any proceedings to set it aside. In such cases there is nothing to be set aside and there can be no application to set aside the sale.

34. In Seshagiri Rao v. Srinivasa Rao : (1920)38MLJ62 , the appellant was a party to the suit, but the decree had exonerated him from liability. Notwithstanding this, in execution of the decree, his 3/4th share in the properties was sold on 26th January, 1910. The auction-purchaser obtained delivery of the property on 16th December, 1910. The appellant filed a suit to set aside the sale on 25th July, 1911 on the ground that it was in contravention of the decree and was therefore void. On an objection having been taken that the suit was barred under Section 47 the Court upheld the objection but treated the plaint as an application under Section 47. Then the question arose whether the application was barred under Article 166 of the Limitation Act. This Court held that as the sale was a nullity there was no necessity to set aside the sale in law and therefore the article of Limitation Act that was applicable was Article 181 and not 166.

35. This statement of law was upheld by a Full Bench of this Court in Rajagopala Aiyer v. Ramanujachariar I.L.R.(1924) Mad. 288 : 46 M.LJ. 0 : A.I.R. 1924 Mad. 431. The Full Bench of this Court held that where an execution sale is void as against a party and he applies for relief under Section 47, Civil Procedure Code or otherwise the article applicable is Article 181 and not Article. 66. The learned Judges were considering the applicability of Articles 166 and 181 of the Limitation Act, 1908.

36. The decisions in Seshagiri Rao v. Srinivasa Rao I.L.R. Mad. 313 : A.I.R. 1920 Mad. 402 and in Rajagopala Aiyar v. Ramanujachariar I.L.R. Mad. 288 : A.I.R. 1924 Mad. 431 have again been followed by the Rangoon High Court in Ma We Gyan v. Maung Than Bya A.I.R. 1937 Rang 126 wherein it was held that 'if the execution sale was void, it was not necessary for the applicant to have it set aside, and that even if there was such a prayer, that would not affect the real nature of the application which was really for an order directing the respondent to deliver property on the ground that there was no valid sale.

37. In Nirode Kali Roy v. Harendra Nath : AIR1938Cal113 a Bench of the Calcutta High Court held as follows:

Article 166 of the Limitation Act. 1908 extends to all applications for setting, aside a sale under Section 47, Civil Procedure Code, and is not limited to applications under Order 21, Rules 89, 90 or 91. Article 166 however contemplates applications for setting aside sales which are not void but voidable. Where therefore the execution sale is a nullity, if a party to the suit files an application under Section 47 to have it pronounced a nullity or for setting it aside for safety's sake to avoid future difficulties, the proper Article that applies is Article 181 and not Article 166.

38. The dictum laid down in the above decisions was approved and accepted by the Supreme Court in Ramanna v. Nallaparaju : [1955]2SCR938 the head note of which reads as follows:

Article 166 (1908 Act) applies only when the sale is one which has under the law to be set aside as for example under Order 21, Rules 89, 90 and 91, Civil Procedure Code, but it has no application when the sale is inoperative and void When a sale in execution is inoperative and void, an application by a judgment-debtor to have it declared void and for appropriate reliefs is governed by Article 181 and not Article 166.

39. The principles laid down in the above decisions apply to this case and the article that is applicable is the residuary Article 137 which corresponds to Article 181 of the 1908 Act. Under this article, the revision petitioner has got a period of three years from the date of sale which was on 16th January, 1975 It is admitted that if Article 137 applies, the application filed by the revision petitioner to have the sale declared null and void is within time.

40. Lastly, Mr. R.S. Venkatachari argued that Ordinance 1 of 1975 has been repealed by Act X of 1975 and that consequently no application could be maintained by the petitioner to set aside the sale by invoking Section 4 of Ordinance I of 1975. Act X of 1975 no doubt repealed Ordinance I of 1975. However, Section 3 of Act X of 1975 provided that the Act must be deemed to have come into force on 16th January, 1975 However, the duration of Act X of 1975 was only for a period of one year; on 15th January, 1976, Ordinance I of 1975 was promulgated extending the period of Act X of 1975 for a period of three months. That was again extended by Ordinance VII of 1976. Ultimately, Act XV of 1976 was passed replacing the Ordinances. The period of duration of Act XV of 1976 was also for a period of one year from 15th January, 1976. The Act XV of 1976 also has now ceased to be in force. It is in these circumstances Mr. R.S. Venkatachari contended that the petitioner could not invoke the aid of Section 4 of either the Ordinance or the Act as the Act was only a temporary Act and it ceased to be in force by efflux of time. In this context before I consider the question as to what is the effect of the expiry of a temporary statute I may state that even though the application was filed under Section 4 of Ordinance I of 1975 inasmuch as the Ordinance was replaced by the Act X of 1975. Mr. R.S. Venkatachari himself conceded that the application could be treated as one filed under Act X of 1975.

41. In this connection, the learned Counsel cited the following two decisions: Bansgopal v. Emperor : AIR1933All669 and Kalyan Das v. Emperor A.I.R. 1935 Lah. 188

42. In Bansgopal v. Emperor : AIR1933All669 the Full Bench of the Allahabad Hight Court held thus: 'As a general rule, unless there is some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any furthereffect. An offence therefore committed against a temporary Act must be prosecuted and punished before the Act expires and as soon as the Act expires any proceedings which are being taken against a person will ipsofacto terminate.'

43. In Kalyan Das v. Emperor A.I.R. 1935 Lah. 188 it has been held thus:

The provisions of Section 6, General Clauses Act, are not applicable to a temporary statute, which expires automatically on a given date. Therefore, proceedings which are pending under an Ordinance on the date of its expiry could not be continued, in the absence of a clear statutory provision to this effect. Hence where a prosecution is begun when the Ordinance is in force but it is not in force on the date of conviction, conviction is illegal and ultra vires.

The above two decisions cited by the learned Counsel are not applicable to the facts of the present case. There, in both the cases the proceedings were pending when temporary Acts expired.

44. In S.A. Seshadri v. Narayana : AIR1950Mad106 this question arose for consideration On 29th May 1946, the landlord obtained an order of eviction of the tenant under Madras House Rent Control Order of 1945. The tenant preferred an appeal to the Collector of Madras which was dismissed on 15th July. 1946. On 2nd August, 1946, the landlord applied to the City Civil Court for execution of the order for eviction. On the very same day, 2nd August, 1946 the tenant presented a revision petition to the Government, while the revision petition was pending before the Government, the Madras Rent Control Order of 1945 ceased to be in force on 30th September, 1946, and its place was taken by Madras Act XV of 1946. On 13th March, 1947, after the expiry of the Madras House Rent Control Order the Government allowed the revision petition of the tenant. Consequently, the execution Court dismissed the execution petition and against that order of dismissal of the execution petition the landlord filed an appeal in the High Court. It was contended before the High Court that when the Government passed the order allowing the revision petition of the tenant they had no power to do so since the Madras House Rent Control Order of 1945 which alone conferred the requisite power of revision on the Government had ceased to be in force. Balakrishna Aiyar, J. held as follows:

The provisions of Section 8 of Madras General Clauses Act will not directly apply when a temporary Act expires by efflux of time. What is to happen to pending proceedings in such a case must depend upon the intention of the legislature; and where clear words are not used the intention must be inferred from the relevant circumstances.

Finally it was held in that case that the Madras House Rent Control Order, 1945 entitled a tenant against whom an order of eviction had been passed to file a revision to the Government and Section 18 of Act XV of 1946 indicated that the intention of the legislature was that as far as possible all pending proceedings were to be continued.

45. In Haran Chandra v, State of West Bengal : AIR1952Cal907 the effect of expiry of a temporary act arose for consideration. Bose J. of the Calcutta High Court stated as follows:

It was further contended by Mr. Sen that as Ordinance III of 1948 was of temporary duration, all acts done under the Ordinance ceased to have effect as soon as the life of the Ordinance expired and consequently the newly constituted District Board ceased to exist and the old District Board revived on the expiry of the Ordinance. This contention appears to me to be equally unfounded. All acts completed during the currency of the Ordinance have the same effect as acts done under a permanent statute and they endure permanently notwithstanding the expiry of the Ordinance. It is only the pending proceedings or the unfinished acts which cease to operate or exist with the expiry of the Ordinance, unless such proceeding or acts are preserved by appropriate provisions in the Ordinance itself or by other appropriate Acts of the Legislature. It is thus clear from these propositions that the dissolution of the old District Board was complete and the expiry of the Ordinance could not have the suggested effect of nullifying the dissolution and reviving the old District Board.

46. In State of Orissa v. Bhupendra Kumar A.I.R. 1962 S.C. 9l5 two appeals had been filed against the order passed by the High Court of Orissa under Article 226 of the Constitution striking down as unconstitutional Sections 4 and 5(1) of Orissa Ordinance I of 1956 promulgated by the Governor of Orissa on 15th January, 1950. One of the contentions raised on behalf of the respondents was that the Ordinance lapsed on 1st April, 1959 and that consequently the appeals before the Supreme Court had become infructuous. The contention was based on the ground that the Ordinance was a temporary statute, it was bound to lapse after the expiry of the prescribed period and so, as soon as it lapsed, the invalidity in the Cuttack Municipal elections which had been cured by it revived and so there was no point in the appellants challenging the correctness of the High Court's decision. In this connection, Gajendragadkar, J., as he then was, who spoke for the constitution Bench stated thus:

It is true that the provisions of Section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. As observed by Patanjali Sastri, J. as he then was, in S. Krishnan v. State of Madras : [1951]2SCR621 the general Rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can, and often does avoid, such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of Section 6 of the General Clauses Act. Incidentally we ought to add that, it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by Article 213(2)(a).

Wicks v. Director of Public Prosecution (1947) A.C. 362 is an illustration in point. The Emergency Powers (Defence) Act, 1939, Section 11, Sub-section (3) with which that case was concerned, provided that the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done. The appellant Wicks was convicted in May, 1946 of offences committed in 1943 and 1944 contrary to Regulation 2 A of the Defence (General) Regulations, 1939, made pursuant 10 the Act. Both the Act and the Regulation expired on 24th February, 1946. It was as a result of this specific saving provision contained in Section 11(3) that the House of Lords held that although Regulation 2-A had expired before the trial of the appellant, he was properly convicted after the expiration of the Act, since Section 11(3) did not expire with the rest of the Act, being designed to preserve the right to prosecute after the date of expiry. Mr. Chetty contends that there is and can be no corresponding'saving provision made by the Ordinance in question and so, the invalidity of the Cuttack Municipal Elections would revive as soon as the Ordinance expired by lapse of time. This contention is based on the general rule thus stated by Craies:

That unless a temporary Act contains some special provision to the contrary after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. That is why offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate (Craies on Statute Law, page 377).

47. In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. Chetty relies is inflexible and admits of no exceptions. It is true for instance that offences committed against temporary Acts must be prosecuted and punished before the Act expires. If a prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate. But is that an in flexible and universal rule? In our opinion what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not As observed by Parker, B. in the case of Steavenson v. Oliver (1841) 151 E.R. 1024:

There is a difference between temporary statutes and statutes which are repealed: the latter except so far as they relate to transactions already completed under them become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction.

In this connection, it would be useful and interesting to consider the decision in the case of Steavenson (1841) 151 E.R. 1024 itself. That case related to 6 Geo. 4 c. 183; Section 4 which provided that every person who held a commission or warrant as surgeon or assistant-surgeon in His Majesty's navy or army, should be entitled to practise as an apothecary without having passed the usual examination. The statute itself was temporary and it expired on 1st August, 1826. It was urged that a person who was entitled to practise as an apothecary under the Act would lose his right after 1st August, 1826 because there was no saving provision in the statute and its expiration would being to an end all the rights and liabilities created by it The Court rejected this contention and held that the person who had acquired a right to practice as an apothecary, without having passed the usual examination, by virtue of the provision of the temporary Act, would not be deprived of his right after its expiration. In dealing with the question about the effect of the expiration of the temporary statute. Lord Abinger, C.B. observed that:

It is by no means a consequence of an Act of Parliament expiring, that rights acquired under it should likewise expire. Take the case of a penalty imposed by an Act of Parliament; would not a person who had been guilty of the offence upon which the legislature had imposed the penalty while the Act was in force, be liable to pay it after its expiration? The case of a right acquired under the Act is stronger. The 6 Geo. 4c. 133, provides that parties who hold such warrants shall be entitled to practise as apothecaries; and we cannot engraft on the statute a new qualification, limiting that enactment.

48. It is in support of the same conclusion that Parker B, made the observations which we have already cited. 'We must look at this Act,' observed Parker, B. 'and see whether the restriction in the 11th clause, that the provisions of the statute are only to last for a limited time, is applicable to this privilege, in question. It seems to me that the meaning of the legislature was that all assistant surgeons, who were such before the 1st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on 1st August, 1815 and that their privilege as such was of an executory nature, capable of being carried into effect after 1st August, 1826'.

49. Take the case of a penalty imposed by a temporary statute for offences created by it. If a person is tried and convicted under the relevant provisions of the temporary statute and sentenced to undergo imprisonment, could it be said that as soon as the temporary statute expires by efflux of time, the detention of the offender in jail by virtue of the order of sentence imposed upon him would cease to be valid and legal? In our opinion, the answer to this question has to be in the negative. Therefore in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. If a penalty has been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be true legal position in the matter.

50. Now turning to the facts in the present case, the Ordinance purported to validate the elections to the Cuttack Municipality which has been declared to be invalid by the High Court by its earlier judgment so that as a result of the Ordinance, the elections to the Cuttack Municipality must be held to have been valid. Can it be said that the validation was intended to be temporary in character and was to last only during the lifetime of the Ordinance? In our opinion, having regard to the object of the Ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired, the validity of the elections came to an end and their invalidity was revived. The rights created by this Ordinance are, in our opinion, very similar to the rights with which the Court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance. The Ordinance has in terms provided that the orders of the Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires. Therefore, we do not think that the preliminary objection raised by Mr. Chetty against the competence of the appeals can be upheld.'

51. In Union of India v. Sitaramanjaneyulu : AIR1971AP145 it is staled by a Bench of the Andhra Pradesh High Court as follows:

Now it is a well recognised general rule that unless it contains some special provisions to the contrary after a temporary Act has expired, it in its entirety ceases to have any further effect and no proceedings which are pending can be continued nor fresh proceedings can be initiated upon such an expired Act. Any offence committed against temporary Act must be prosecuted and punished before the Act expires. As soon as the temporary Act expires, any prosecution which is taken against a person ipso facto terminates and no fresh prosecution can be taken upon the expiry of the Act. This, however, does not mean that all transactions done, rights created or punishments awarded become invalid on the expiry of the Act. In other words, its expiry does not make the statute dead for all purposes. The nature of the right created by the temporary Act or obligation arising out of the provisions thereof and their character may have to be taken into account to determine whether any right or obligation under the Act is enduring and survives in spite of the expired the Act or not.

From the above decisions the following principles emerge. Unless a temporary Act contains some provisions to the contrary after the expiry of a temporary Act, it in its entirety ceases to have any further effect and no proceedings which are pending can be continued nor fresh proceedings could be initiated upon such an expired Act. Further, when a temporary Act expires, Section 6 of the General Clauses Act which in terms is limited in its application only to repeals has no application to an expiry of a temporary statute. But the nature of the right created by the temporary Act or obligation arising out of the provisions thereof and their character may have to be taken into account to determine whether any right or obligation under the Act is enduring and survives in spite of the expiry of the Act or not. The effect of expiry of a temporary Act depends upon the construction of the Act itself. Transactions that have been completed, rights that have been acquired and penalties that have been incurred while a statute is in force are not affected by the mere fact that the statute has ceased to be in force. Although the effect of repealing a statute is to obliterate it as completely as if it had never been passed, the rule must be taken with the qualification that it does not deprive persons of vested rights acquired by them in actions duty determined under the repealed law.

52. Therefore, tested in the light of the above principle the contention raised by Mr. R.S. Venkatachari that in view of the expiry of the Act X of 1975 it would not be open to the petitioner to invoke the aid of Section 4 of the said Act is unsustainable. The sale was held on 16th January, 1975 when Ordinance 11 of 1975 was in force. The sale was held in violation of the mandatory provisions of Section 4 of the said Ordinance. The object of the Ordinance was to relieve the pressure on the agriculturists by the creditors so that they may be spared the distractions and expenditure involved in litigation launched by their creditors. In view of the widespread drought in the State it was thought necessary that the agriculturists should be enabled to rehabilitate themselves in order that the maximum possible advantage may result to the State in the matter of production of food crops. Therefore, the legislature thought it fit not only to provide that no suit for the recovery of a debt shall be instituted and no application for the execution of a decree for payment of moneys passed in such suit against any agriculturist shall be instituted or made in any civil or revenue Court before the expiry of a year from the date of the commencement of the Ordinance, but also all further proceedings in suits and applications of the nature mentioned above shall stand stayed till then. This provision is mandatory. The mandatory nature of Section 3 and 4 could be seen from the provisions of Section 5 where the legislature has provided that in computing the period of limitation or limit of time prescribed for a suit for the recovery of a debt or an application for the execution of a decree passed in such suit, the time during which the institution of the suit or the making of the application was barred by Section 3 of this Ordinance or during which the plaintiff or his predecessor in title believing in good faith that Section 3 of this Ordinance applied to such suit or such application, refrained from instituting the suit or making the application, shall be excluded. Section 5(2) has gone to the extent of providing that where in a suit or an application in which the question of the exclusion of time under Sub-section (1) arises, the defendant or the respondent, or one of the defendants or respondents, with respect to whom the question is raised, would have been an agriculturist but for the fact that in the year ending 1971-72, 1972-73 or 1973-74 he had been assessed to income-tax under the Income-tax Act, 1961 or to agricultural income tax under the Tamil Nadu Agricultural Income-tax Act, 1955, it shall be conclusively presumed that in retraining from instituting the suit or making the application the creditor believed in good faith that such defendant or respondent was an agriculturist. In these circumstances, the sale held on 16th January, 1975 contrary to the provision of Section 4 of Ordinance I of 1975 or Act X of 1975 could not but be void and inoperative. It could not have been the intention of the legislature that once the temporary statute expired a Court sale held contrary to the mandatory provisions of the statute, which were intended for the benefit and protection of the agriculturists and which was from the very inception void, could become valid by the expiry of the statute. Certainly the expiry of Act X of 1975 could not have the effect of validating the Court sale held on 16th January, 1975.

53. The same conclusion can also be arrived at from another angle. The petitioner by seeking to have the sale declared void is not invoking the aid of Act X of 1975 which has ceased to be in force. According to the learned Counsel Mr. Krishnan the sale that took place on 16th January, 1975 was void. The question whether the tale was void or not should be decided in the light of the provision of law that was on the statute book as on the date of the sale taking place. If the sale was void then he was entitled under the general law for a declaration that the sale that took place on loth January, 1975 was void. In this view, Mr. Krishnan is right in his submission that the petitioner is not seeking to invoke the aid of or apply the provision of Section 4 of Ordinance I of 1975 as replaced by Section 4 of the Act X of 1975.

54. In this connection, Mr. R.S. Venkatachari cited the decision of Ramanujam, J. in Margachari v. Krishnaswamy Mudaliar : (1978)1MLJ74 The appeal before the learned Judge was filed by the judgment-debtors against the dismissal of the application that the sale held on 7th July, 1975 in E.P. No. 17 of 1975 in O.S. No. 295 of 1972 on the file of the Sub Court, Vellore was void and inoperative. The application was filed on the ground that the sale was inoperative and without jurisdiction in view of Section 4 of Act X of 1975. Another application had also been filed on the ground that the sale was contrary to Section 23(c) of the Tamil Nadu Agriculturists Relief Act IV of 1938. The applications were opposed by the decree-holder before the execution Court on the ground that the first appellant had claimed and obtained benefits of Act XXXVIII of 1972 on the basis that he was a debtor as defined in that Act and that consequently the first appellant was not entitled to the benefits of Act X of 1975. This objection was upheld by the execution Court. Ramanujam, J. held while interpreting Section 4 of Act X of 1975 that the first appellant was an agriculturist as defined in Act X of 1975 and that Section 4 could be taken as a fetter on the execution Court not to proceed with the sale during the one year period referred to therein. The learned Judge however held that since the first appellant had applied for relief under Act XXXVIII of 1972 on the ground that he was not an agriculturist and had obtained benefit therefrom it would not be open to him to turn round and say that he was an agriculturist for the purpose of Act X of 1975 and Act IV of 1938. In view of this, the learned Judge held that it would not be open to the first appellant to invoke Section 4 of Act X of 1975 or Act IV of 1938. In this view, he found that the first appellant was not entitled to any relief. Having come to this conclusion, the learned Judge made the following observations:

Besides, the Tamil Nadu Act X of 1975 is a temporary statute and it has expired by efflux of times. Though the Tamil Nadu Act XV of 1976 has taken the place of Tamil Nadu Act X of 1975 the latter has ceased to have effect. It is a general rule of interpretation that if a temporary statute expire by efflux of time, it should be deemed that the Act never existed on the statute book. Therefore, the first appellant cannot claim to set aside the sale under Section 47, Civil Procedure Code on the ground that he is entitled to stay under Section 4 of the Tamil Nadu Act X of 1975 which has now ceased to have any operation. Therefore, in any view of the matter, the first appellant cannot have the sale set aside under Section 47, Civil Procedure Code.

It will be seen that the observation of the learned Judge in paragraph 14 of the judgment above extracted was not necessary for the decision of the case since as already stated by me, the learned Judge came to the conclusion that the judgment-debtor was not entitled to the benefits of Act X of 1975 or Act IV of 1938 on the ground that he was an agriculturist for the reason that he applied for and obtained the benefits of Act XXXVIII of 1972 on the ground that he was a debtor and not an agriculturist. In view of this conclusion the subsequent observation of the learned Judge must be deemed to be obiter. Otherwise, I would have been compelled to refer this question for consideration before a Bench as in my opinion the learned Judge, in view of the conclusions already reached by him, did not deem it necessary to elaborately consider the question whether a sale which is void and in operative on account of its being in violation of the mandatory provisions of a statute could become valid by reason of the expiry of the statute.

55. Mr. R.S. Venkatachari cited certain other English and Indian decisions. In my opinion, they do not in any way affect the merits of the case.

56. No other contention was raised before me. In the circumstances I hold that the sale held on 16th January, 1975 being against the mandatory provisions of Section 4 of Act X of 1975 is void and not binding upon the judgment-debtor revision-petitioner, and that the petition filed is not barred by limitation. I therefore set aside the order of the lower Court and allow the revision petition. No costs.


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