K VBHASKARA RAO AND Vs. SNARANAPPA

JUDGEMENT

(1.) The appellants were judgment-debtors 12 and 14 in the trial Court. The respondent obtained a decree in O. S. No. 90/41-42 on the file of the Munsiff of Sagar against fifteen persons including the appellants, who were then minors represented by a Court Clerk as their guardian ad litem, for recovery of Rs. 324-2-0 being the kandayam amount paid by the plaintiff towards the defendants' family, lands. In execution of that decree the respondent brought some immoveable properties of the judgment-debtors to sale and purchased them himself on 2-7-42. The sale was duly confirmed and the respondent obtained possession of the properties through Court. It appears that during the pendency of that execution case, on 2-7-42 judgment-debtors 3 and 11 had filed an application No. 1 of 42-43 before the Debt Conciliation Board, Sagar Taluk, for a settlement of the debts said to be due by their family, and on the same day and before the court sale was held they had filed in the Munsiff's Court at; Sagar an application for stay of sale along with an acknowledgment they had obtained from the office of the Board for receipt of the application. The Court, however, rejected the application and did not stay the sale, which went through and was held and confirmed on 2-7 1945 as stated above The appellants (of whom the 12th had since attained majority) made an application to the Court under Sections 47 and 151, Civil P C., saying that the sale was, in the circumstances, held without jurisdiction and also vitiated by irregularities and fraud and was, therefore, invalid and that it may be cancelled. The learned Munsiff of Sagar dismissed their application and on appeal his order was confirmed by the District Judge of Shimoga. The present second appeal hag been filed against his order.

(2.) It is contended by Mr. R. V. Sreenivasaiya, the learned advocate for the Appellants that under Section 26 Mysore Debt Conciliation Act, V. [6] of 1937 when an application dad been made to a Board under Section 4 of the Act, the execution proceedings then pending before the Munsiff was bound to have been suspended and not having been done so the subsequent court-sale is void. It is admitted by Mr. Sreenivasaiya that the application made to the Board by judgment-debtors 3 and 11 was dismissed for default without notice of it being served on the decree-holder and that this particular decree debt which was under execution was not included in than application. In fact the application for stay of sale (I. A. No. 3) made by judgment-debtors 3 and 11 in the execution case was rejected by the learned Munsiff on the ground that they had not shown that their application was for settlement of the said debt.

(3.) It appears to be clear from the wording of Section 26 of the Act that it is only any suit or other proceeding then pending in respect of any debt for the settlement of which application has been made to the Board that is liable to be suspended. Mr. Sreenivasaiya, however, has argued rather ingeniously that the decree debt in question became the subject of those proceedings as soon as an application was filed under Section 4 of the Act for conciliation of their debts by judgment-debtors 3 and 11 irrespective of whether the same was expressly included in their application or not, and that the general scheme of the Act is to decide upon and conciliate on all the debts of the debtor He relies in support of his argument on the reasoning involved on a consideration of the three cases which he cites, viz. In re Siddappa Chettiar, AIR (29) 1942 Mad 738 : (204 I C 409); Madana Palli Laksmikantha Nidhi Ltd. v. Raghunatha Chary v. AIR (31) 1944 Mad 24 (210 I C 606); Champat v. Ismail Khan, AIR (31) 1944 Nag. 142 (ILR (1944) Nag 264) and a reference to Section 28, Debt Conciliation Act. He points out that under Section 28 in computing the period of limitation for a suit or other proceedings filed before a civil Court for the recovery of a debts which wag the subject; of any proceedings under the Act certain deductions obtained are permissible.