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V.K. Margachari and anr. Vs. M.R. Krishnaswami Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1978)1MLJ74
AppellantV.K. Margachari and anr.
RespondentM.R. Krishnaswami Mudaliar and anr.
Cases ReferredNachimuthu Chettiar v. Moorthammal
Excerpt:
- .....setting aside the court sale on the ground that the same was contrary to section 23-c of the tamil nadu agriculturists debt relief act (iv of 1938), as amended by act viii of 1973. these two applications were opposed both by the decree-holder and the court auction-purchaser on the ground that the appellants having claimed and obtained the benefits of the tamil nadu act xxxviii of 1972 on the basis that they are debtors as defined in that act, they are not entitled to claim benefits of the tamil nadu act x of 1975 on the contrary basis that the first appellant is an agriculturist in view of the specific provisions contained under the proviso to the definition of a 'debtor' in act xxxviii of 1972 which says that an agriculturist as defined in the tamil nadu act iv of 1938 shall not be.....
Judgment:

G. Ramanujam, J.

1. This appeal arises out of an order of the lower Court dismissing an application filed by the appellants herein under Section 47 of the Code of Civil Procedure wherein they sought for a declaration that the Court 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, is void and inoperative.

2. The appellants herein, father and son respectively, are the judgment-debtors under a mortgage decree in O.S. No. 295 of 1972 on the file of the Sub-Court, Vellore. The first respondent herein is the decree holder and the second respondent is the Court auction-purchaser of the mortgaged property in execution of the mortgage decree, dated 31st October, 1974 in a Court sale held on 7th July, 1975 in E.P. No. 17 of 1975. In the execution petition, the Court had ordered notice to the appellants and they entered appearance through their counsel on 26th February, 1975 and sought time till 5th March, 1975 for filing their objections. On 5th March, 1975, their counsel made an endorsement on the execution petition that they had no objection. Thereafter there was the fixation of the upset price, the settlement of sale proclamation, and the sale was posted to 23rd June, 1975. In the meantime, the appellants filed an application under Order 21, Rule 69 of the Code of Civil Procedure to adjourn the sale on payment of Rs. 200. The sale was then adjourned to 7th July, 1975. The appellants then filed E.A. No. 255 of 1975 under Section 4 of the Tamil Nadu Ordinance I of 1975 seeking, stay of the execution. The said application was opposed by the decree-holder and it was finally posted for hearing on 11th July, 1975. The appellants again filed an application E.A. No. 323 of 1975 for stay as the lower Court had ordered the sale of the mortgaged property by 7th July, 1975. They referred therein to the pendency of the application E.A. No. 255 of 1975 in which they claimed to be agriculturists entitled to the benefits of the Ordinance, and prayed that till that application was disposed of, the sale should be postponed. The lower Court adjourned that stay application for disposal to 30th July, 1975. In the meanwhile, the sale had been held in pursuance of the orders of Court on 7th July, 1975 and the mortgaged property has been purchased by the second respondent for a sum of Rs. 31,000. Later on, the two applications viz., E.A. No. 255 of 1975 and E.A. No. 323 of 1975 had been dismissed on the ground that the sale had already taken place.

3. After the sale, the appellants herein filed two applications, viz., (1) E.A. No. 450 of 1975 to declare the said sale void on the ground that the said' sale was inoperative and without jurisdiction in view of Section 4 of the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act (X of 1975) and (2) E.A. No. 628 of 1975 for setting aside the Court sale on the ground that the same was contrary to Section 23-C of the Tamil Nadu Agriculturists Debt Relief Act (IV of 1938), as amended by Act VIII of 1973. These two applications were opposed both by the decree-holder and the Court auction-purchaser on the ground that the appellants having claimed and obtained the benefits of the Tamil Nadu Act XXXVIII of 1972 on the basis that they are debtors as defined in that Act, they are not entitled to claim benefits of the Tamil Nadu Act X of 1975 on the contrary basis that the first appellant is an agriculturist in view of the specific provisions contained under the proviso to the definition of a 'debtor' in Act XXXVIII of 1972 which says that an agriculturist as defined in the Tamil Nadu Act IV of 1938 shall not be deemed to be a debtor, and that the appellants were not entitled to claim the benefits of Section 23-C of the Tamil Nadu Agriculturists Relief Act (IV of 1938), as the sale had been held after 1st March, 1972, the date of publication of the Tamil Nadu Amending Act III of 1973.

4. The Court below upheld the objections of the decree-holder and the Court auction-purchaser and dismissed both the applications holding that the sale held on 7th July, 1975 is not void as alleged by the appellants and that the sale having been held long after 1st March, 1972, Section 23-C of the Tamil Nadu Act IV of 1938 has no application.

5. The appellants have challenged the decision of the lower Court so far as it relates to the rejection of their application under Section 47 of the Code of Civil Procedure. They have not, however, challenged the order of the lower Court so far as it relates to their claim for protection under Section 23(c) of the Tamil Nadu Agriculturists Relief Act, IV of 1938. Therefore, the only question that has now to be decided in this appeal is whether the sale held on 7th July, 1975 in E.P. No. 17 of 1975 in O.S. No. 295 of 1972 is void and without jurisdiction as contended by the appellants.

6. The appellants' plea that the sale held on 7th July, 1975 is void is based on the assumption that the first appellant is entitled to a stay of the execution under Section 4 of the Tamil Nadu Act X of 1975 and that the sale held overlooking the said provision is void and inoperative. To establish the claim that the first appellant is entitled to the benefit of stay under Section 4 of the Tamil Nadu Act X of 1975 he has to establish that he is an agriculturist debtor.

7. When the matter came up for consideration before this Court on an earlier occasion, the Court felt that the evidence on record was not sufficient to support the allegation that the first appellant owns and possesses an extent of 19 cents of land and as such an agriculturist, and therefore called for a finding from the Court below on the question whether the first appellant is an agriculturist or not. The lower Court has since submitted its finding dated 8th December, 1976. In the said finding the lower Court has dealt with the evidence in detail and held that the first appellant was an agriculturist on 7th July, 1975, the date of sale. Though the finding rendered by the Court below has been questioned by the respondents, I am inclined to accept the said finding having regard to the documents and other materials referred to by the lower Court. I have therefore, to proceed on the basis that the first appellant was an agriculturist on 7th July, 1975, the date of sale.

8. The substantial point that has been urged by the learned Counsel for the appellants is that once the first appellant is an agriculturist as contemplated by the Tamil Nadu Act X of 1975, he is entitled to have the execution stayed under Section 4 and that the sale having taken place during the pendency of his application for stay of sale under that section it is void. The learned Counsel relies on the decision of this Court in Nachimuthu Chettiar v. Moorthammal (1976) T.L.N J. 367, in support of his stand. In that case, in execution of a mortgage decree, properties had been sold overlooking an application filed by the judgment-debtor under Section 20 of the Tamil Nadu Act IV of 1938 for stay of the execution for the purpose of enabling the judgment-debtor to file an application for relief under Section 19. It was contended on behalf of the judgment-debtor in that case that that while an application under Section 20 of the Tamil Nadu Act IV of 1938 for stay of the execution of the decree was pending, the execution Court has no jurisdiction to direct the sale of the property and that as the sale has been held in contravention of Section 20, the same is void and inoperative in law. That contention was accepted by the Court below. Before this Court, the decree-holder contended that Section 20 of the Tamil Nadu Act IV of 1938 does not affect the jurisdiction of the executing Court to execute a mortgage decree by the sale of the hypotheca, that the mere pendency of an application under Section 20 does not take away the said jurisdiction of the executing Court to execute the decree and that Section 20 is only directory and not mandatory. This Court held that Section 20 is a mandatory provision and that as such if the sale is held contrary to Section 20, it can be set aside under Section 47 of the Code of Civil Procedure. The above decision is an authority for the proposition that if a sale is held in contravention of a statutory provision, the same can be set aside under Section 47 of the Code of Civil Procedure. That decision is based on the fact that Section 20 is a mandatory provision and that if the sale is held in contravention of that provision, it should be taken to be void.

9. We are here concerned with the interpretation and scope of Section 4 of the Tamil Nadu Act X of 1975. That section says that all further proceedings in suits for the recovery of debts and applications for the execution of decrees for payment of money passed in a suit for the recovery of a debt in which the relief is claimed against an agriculturist shall stand stayed until the expiry of a year from the date of the commencement of that Act. That Act came into force on 16th January, 1975 and the stay of proceedings contemplated under Section 4 is for a period of one year from that date viz., 16th January, 1975. If the first appellant is an agriculturist as defined in that Act, then Section 4 can be taken as a fetter on the executing Court not to. proceed with the sale till the expiry of the one year period referred to therein. In this case, as already stated, the first appellant has filed an application for stay under Section 4 of the Ordinance I of 1975 and not under the Tamil Nadu Act X of 1975. Even assuming that the application filed by the first appellant under the Ordinance is deemed to have been filed under Section 4 of the Tamil Nadu Act X of 1975, he has to satisfy the definition of an 'agriculturist' in Section 2(b) of the Tamil Nadu Act X of 1975.

10. The term 'agriculturist' is defined in Section 2(b) of the said Act as a person who owns an interest in agricultural land and who, by reason of such interest, is in possession of such land. In view of the findings rendered by the Court below that the first appellant is an agriculturist on the date of the sale, Section 4 will have to normally operate. However there is one other statutory provision which stands in the way of the first appellant claiming the benefit of Act X of 1975 as an agriculturist. In this case, the preliminary decree has been passed on 22nd December, 1972 and the final decree has been passed on 2nd July, 1974. At no stage prior to the passing of the decree, the appellants claimed that they are agriculturists . On the other hand, they claimed benefit only under the Tamil Nadu Debt Relief Act, 1972, Tamil Nadu Act XXXVIII of 1972. In fact, the first appellant was held entitled to the benefits of the said Act on the ground that he is not an agriculturist. Though in the plaint it has been specifically averred that the appellants are not agriculturists as per the Tamil Nadu Agriculturists Relief Act IV of 1938, the appellants have not denied the same in the written statement. In the application filed by the first appellant for relief under the Tamil Nadu Act XXXVIII of 1972, the decree-holder, first respondent, pleaded that the first appellant is not entitled to the benefits of that Act. However, the Court held the first appellant to be entitled to the benefits of the said Act and scaled down the mortgage debt as per Section 6 of that Act. Therefore, as it is, the first appellant claimed benefit under the Tamil Nadu Act XXXVIII of 1972 on the ground that he is not on agriculturist-debtor. After having scaled down the debt under Section 6 of that Act on that basis, the first appellant now turns round and says that he is an agriculturist entitled to the benefit of Section 4 of the Tamil Nadu Act X of 1972 as well as the benefit under Section 23-C of the Tamil Nadu Act IV of 1938. As already stated, the Court below has rejected the first appellant's claim for relief under Section 23-C of the Tamil Nadu Act IV of 1938 on the ground that that section is inapplicable as the sale had taken place after 1st March, 1972. But the fact remains that simultaneously the first appellant claims benefit under Section 4 as also the benefit under Section 23-C of the Tamil Nadu Act IV of 1938.

11. Thus, the first appellant came forward with a plea that he is not an agriculturist at the stage of the suit and obtained relief on that basis for scaling down of the decree and at the stage of the execution he has come forward with a new case that he is an agriculturist and as such entitled to claim benefit on that basis. The first appellant got the benefit of scaling down under Section 6 of the Tamil Nadu Act XXXVIII of 1972 on the ground that he is a non-agriculturist-debtor entitled to the benefits of that Act. The debtor is defined in Section 2(3) as a person from whom any debt is due; Proviso (ii) thereto says that a person shall not be deemed to be a debtor if he is an agriculturist as defined in the Tamil Nadu Act IV of 1938 and is entitled to the benefit of the said Act. The first appellant claimed to be a debtor as defined in that Act and it is on that basis, he got the benefit of scaling down of the decree. He got the benefit of Section 6 only on the ground that he is a debtor and not an agriculturist as defined in the Tamil Nadu Act IV of 1938. As already stated at no stage of the suit, the first appellant claimed to be an agriculturist entitled to the benefits of the Tamil Nadu Act IV of 1938. It is only after getting the benefit of Section 6 of the Tamil Nadu Act XXXVIII of 1972, the first appellant has come forward with a plea that he is an agriculturist entitled to the benefit of Section 4 of the Tamil Nadu Act X of 1975 and Section 23-C of the Tamil Nadu Act IV of 1938.

12. The learned Counsel for the respondents contends that is not open to the first appellant to plead or take inconsistent pleas that the first appellant having got the benefit of Section 6 of the Tamil Nadu Act XXXVIII of 1972 on the ground that he is a non-agriculturist debtor, it is not open to him now to claim that he is an agriculturist at the stage of execution for the sake of having the execution stayed. On a due consideration of the matter, I am inclined to agree with the submission of the learned Counsel for the respondents. It is clear from the provisions of the Tamil Nadu Act XXXVIII of 1972 that a person can claim benefit under the Tamil Nadu Act XXXVIII of 1972 only if he is not an agriculturist-debtor. The fact that the first appellant claimed that he is not an agriculturist-debtor and got the benefit of scaling down under Section 6 of that Act, clearly indicates that he was not an agriculturist on 2nd July, 1974 when the final decree was passed.

13. The first appellant's own case is that he has got 19 cents of land by virtue of a settlement after the death of the settlor and his wife in the year 1973 and he became an agriculturist thereafter. The finding of the lower Court also is that the first appellant was an agriculturist only on the date of the sale i.e., on 7th July, 1975. Though the first appellant satisfied the definition of an agriculturist in Section 2(b) of the Tamil Nadu Act X of 1975 on the date of the sale, the fact that he has obtained the benefit under the Tamil Nadu Act XXXVIII of 1972 on the basis that he is a non-agriculturist-debtor will stand in his way of claiming the benefit of stay under Section 4 of the later Act. The first appellant having earlier taken up the position that he is a non-agriculturist-debtor and obtained the benefits accrued thereunder on that basis, he is estopped from claiming that he is an agriculturist and therefore he is entitled to invoke the provisions of the Tamil Nadu Act X of 1975. Though the earlier decision of the Court holding the first appellant as a non-agriculturist-debtor and granting him the benefit of scaling down under Section 6 of the Tamil Nadu Act XXXVIII of 1972, may not operate as res judicata since the first appellant having obtained that benefit on the plea that he is a non-agriculturist-debtor, he cannot now turn round and say that he is an agriculturist-debtor and therefore he is entitled to the benefit of Section 4 of the Tamil Nadu Act X of 1975. Therefore, it is not open to the first appellant now to invoke Section 4 of the Tamil Nadu Act X of 1975 in view of his earlier conduct in getting the benefit of scaling down of the debt under Section 6 of the Tamil Nadu Act XXXVIII of 1972.

14. 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 the 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 expires 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 of the Code of Civil Procedure 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 of the Code of Civil Procedure. The appeal is therefore dismissed. There will, however, be no order as to costs.


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