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Panduranga Naicker Vs. Thirugnana Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1976Mad38; (1975)2MLJ241
AppellantPanduranga Naicker
RespondentThirugnana Mudaliar and anr.
Cases ReferredSethurama Thevar v. Kameetha Rowther and Ors.
Excerpt:
- .....appellant would say that so long as the sale has not been confirmed, the aggrieved person has 90 days time to set aside such sales from the date of confirmation and as the present application has been filed even prior to the date of the confirmation, the application is in time. it is said that the outer limit as provided under the section in the matter of filing such application falls under two broad situations. firstly, an application has to be filed within 90 days from the date of the publication of the act in the local gazette and secondly within 90 days from the date of the confirmation of the sale whichever is later. if, therefore, the confirmation has not taken place on the date when the application has been filed, the question as to the bar of limitation would not at all arise......
Judgment:

T. Ramaprasada Rao, J.

1. The appellant filed an application under Section 23-C of Act IV of 1938 as amended by Madras Act VIII of 1973 to set aside a sale held on 17th January, 1973 in execution proceedings R.E.P. No 518 of 1973 in O.S. No 421 of 1961 on the file of the District Munsif's Court, Tiruvannamalai. The first respondent decree-holder contended that that application filed by the judgment-debtor was beyond time and was barred by limitation. The learned District Munsif, after referring to the relevant statutory provisions and after hearing the parties, rejected the application as out of time and the appeal in C.M.A. No. 20 of 1973 to the Court of the Subordinate Judge, Triuvannamalai was unsuccessful. A Civil Revision Petition was filed as against the order of rejection of the learn-ed Subordinate Judge. Justice V. Ramaswami considered two questions which arose for consideration in the Civil Revision Petition. The first question related to the maintainability of the appeal against the order passed by the learned District Munsif and the second question was whether the application filed by the petitioner on 5th July, 1973 to set aside the Court sale held on 17th January, 1973 was within or beyond time and not in accord with Section 23-G of the Tamil Nadu Agriculturists Relief Act, 1938 as amended in 1973. The learned Judge felt that he was not inclined to accept the ratio in Sethurnama Thevar v. Kameetha Rowther and Ors. : AIR1954Mad368 and was of the view that that decision required reconsideration and directed the Civil Revision Petition as originally filed, but now converted into a Civil Miscellaneous Second Appeal bearing No 158 of 1974 to be placed before a Division Bench

2. Mr. T.R. Ramachandran appearing for the respondents before us in his anxiety to support the orders of the Courts below referred to a few events which are necessary for us to set out before considering the law. It is common ground that the property of the petitioner as judgment-debtor was brought to sale And was purchased by the second respondent on 17th January, 1973. Before the sale could be confirmed, an amending Act VIII of 1973, which introduced Section 23-C of the Act, came into force from 24th January, 1973. Thereafter on 5th June, 1973, the appellant filed an application to set aside the sale taking advantage of the liberalised provisions as regards the point of time during which an application to set aside a sale in the above circumstances could be made : in fact, even on the date when the application for setting aside the sale was filed, the sale was not confirmed. It is said that such confirmation of the sale took place on 21st June, 1973. Mr Ramachandran's contention is that the application is barred by time, as it has not been filed within 90 days from the date of the publication of the amended Act in the Tamil Nadu Government Gazette. On a reading of Section 23-G it is said that the limit of 90 days provided for a litigant to file applications to set aside a sale are referable only to sales which took place on or after the 1st March, 1972 and the sale has not been confirmed before the publication of the Act. As the present sale has not been confirmed before the publication of the said Act, it is seriously contended that the outer limit by which an application to set aside the sale could be made is 90 days from the date of the publication of the Act. If the application under consideration was filed within 90 days from 24th January, 1973, the learned Counsel's contention is that it would be in time. But, as the application has been made on 5th June, 1973 which is beyond 90 days from 24th January, 1973, the application is beyond time. Reliance is placed upon the decision in Sethwama Thevar v. Kameetha Rowther and Ors. : AIR1954Mad368 On the other hand, the learned Counsel for the appellant would say that so long as the sale has not been confirmed, the aggrieved person has 90 days time to set aside such sales from the date of confirmation and as the present application has been filed even prior to the date of the confirmation, the application is in time. It is said that the outer limit as provided under the section in the matter of filing such application falls under two broad situations. Firstly, an application has to be filed within 90 days from the date of the publication of the Act in the local Gazette and secondly within 90 days from the date of the confirmation of the sale whichever is later. If, therefore, the confirmation has not taken place on the date when the application has been filed, the question as to the bar of limitation would not at all arise. V. Ramaswami, J., while referring the subject to a Division Bench has summarised the five situations which might arise under Section 23-C. Before detailing them, we shall refer to the section. It reads as follows:

23-C Power of Court to set aside sales of immovable property in certain cases : Where in execution of any decree, any immovable property in which any person entitled to the benefits of the Tamil Nadu Agriculturists Relief (Amendment) Act, 1972, had an interest, has been sold or foreclosed on or after the 1st March 1972, and the sale has not been confirmed before the publication of the said Act in the Tamil Nadu Government Gazette or ninety days have not elapsed from the confirmation of the sale or from the foreclosure, at such publication, then, notwithstanding anything contained in the Limitation Act, 1963 (Central Act XXXVI of 1963), or in the Code of Civil Procedure, 1908 (Central Act V of 1908) ; and not withstanding that the sale has been confirmed, any judgment-debtor claiming to be entitled to the benefits of the said Act, may apply to the Court within ninety days of such publication or of the confirmation of the sale, whichever is later, to set aside the sale or foreclosure of the property, and the Court shall, if satisfied that the applicant is a person entitled to the benefits of the said Act, order the sale or foreclosure to be set aside, and thereupon the sale or foreclosure shall be deemed not to have taken place at all:Provided that no such order shall be made without notice to the decree-holder, the auction-purchaser, and other persons interested in such sale or foreclosure and without affording them an opportunity to be heard in the matter.

3. The five types of situations referred to be our learned brother are.--(1) no confirmation of the sale prior to the publication of the Act; (2) a confirmation of the sale prior to the publication of the Act and such confirmation was within three months of the Act; (3) confirmation of the sale prior to the publication of the Act, but more than three months prior to the publication; (4) a confirmation subsequent to the Act but within 90 days after such publication ; and (5) a confirmation of the sale more than three months subsequent to the publication of the Act. The learned Judge, no doubt, has very carefully scanned the various situations that are inbuilt in the section itself. We are concerned however in this case with a sale which has been confirmed more than 3 months subsequent to the publication of the Act and with reference to an application filed by the judgment-debtor to set aside such a sale under Section 23-C, but before the date of confirmation of the sale.

4. The first part of Section 23-C refers to the event of sale and its non-confirmation before the publication of the Act and also to the situation when 90 days have not elapsed from the confirmation of the sale or from the foreclosure at such publication- These events, therefore, set down the hypothesis for the invocation of the rule of limitation provided for in Section 23-C. After setting down the data for the invocation of the principal object for which the legislature has inserted the new Section 23-C, the section itself provides thus:

then, notwithstanding anything contained in the Limitation Act, 1963 (Central Act XXXVI of 1963), or in the Code of Civil Procedure, 1908, (Central Act V of 1908), and notwithstanding that the sale has been confirmed, any judgment-debtor claiming to be entitled to the benefits of the said Act, may apply to the Court within 90 days of such publication or of the confirmation of the sale, whichever is later.

5. The term ' whichever is later' undoubtedly has reference to a point of time and not to a situation. Chandra Reddi, J. in Sethurama Thevar v. Kameetha Rowther and Ors. : AIR1954Mad368 while considering a case though not in pan materia with the one under consideration before us had occasion to consider a similar provision, Section 23-A of the earlier Act and observed:

It looks to me that the expression 'whichever is later' means only 'whichever is the case.

6. We are unable, with great respect, to agree with this equation of the phrase 'whichever is later'. As we said, 'whichever is later' connotes a point of time and 'whichever is the case' obviously relates to a situation. Both connote two different aspects. As Justice V. Ramaswami said while referring the matter to a Division Bench:

With great respect to the learned Judge, this interpretation seems to unduly narrow down the application of the benevolent provision contained in that section.

As Courts cannot declare the law, but only interpret it, such interpretation is usually undetaken by Courts with reference to the object of the legislature. The main object of the legislature is to provide relief to the agriculturists. If a person who is entitled to the benefits under the Act comes forward and seeks to set aside the sale or foreclosure of his property, then he has 90 days time to do so from the date of the publication of the Act in the local Gazette or from the date of confirmation of the sale, whichever is later. It is in this context that the expression 'whichever is later' has to be understood. As this parenthesis prescribes a time or a period within which a relief could be asked for and which is assured by the State legislature under certain circumstances, it cannot be lightly denied by a narrow interpretation of the meaning of the words, which are clear and unambiguous, contained in a statutory provision. We are therefore of the view that the words 'whichever is later' which have an impact on time should be interpreted liberally and beneficially in favour of the agriculturists for whose sole benefit the legislation has been undertaken. We are unable to agree with Mr. T.R. Ramachandran that the word then' appearing as a conjunction between the earlier and the later parts of Section 23-G has a significance and that word taken in conjunction with the expression 'whichever is later' should be understood as meaning 'whichever is the case' as was said by Chandra Reddi, J. Again, this contention besides serving only a narrow interpretation of the Act, would only compel us to introduce certain provisions in between the lines of the section which would mean that we are not interpreting the law, but declaring the law. The Courts have no jurisdiction to do so. Even otherwise, it appears to us that the earlier portion of Section 23-C has a purpose to serve which is distinct and different from the purpose which the second part of Section 23-C serves. As all enabling provisions should not only be beneficially interpreted, but also be liberally considered, we are of the view that the term notwithstanding that the sale has been confirmed' appearing in the later part of Section 23-G would mean that the confirmation might be even after the date of the publication. So long as the application to set aside the sale is within 190 days from the date of such confirmation or within 90 days from the date of the Act whichever is later, hen such an application would not be barred. In the instant case, the sale was confirmed on 21st June, 1973. The petitioner, therefore, had 90 days time from 21st June, 1973 to file an application. But he has filed it even earlier apprehending possibly such confirmation. A fortiori therefore, the application is within time

7. The Civil Miscellaneous Second Appeal is allowed and the order of the lower Court is set aside and the subject -matter is remanded to the file of the District Munsif, Tiruvannamalai, for a full hearing on the merits.

There will be no order as to costs.


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