M RAMAN PILLAI Vs. A SIVARAMA PILLAI

JUDGEMENT

(1.) At the outset I would like to point out the litigation has a long history from 1970. The decree holder obtained a decree against the judgment debtor for an amount of Rs.1,724/- and there after brought the property having an extent of 30 cents to sale. The decree holder purchased the property and thereafter the sale was confirmed and the application filed by the judgment debtor to set aside the sale was dismissed and it has become final.

(2.) Meanwhile, the judgment debtor moved an application under Act 17 of 1977 contending that his annual income is less than Rs.3,000/- and his debt also does not exceed Rs. 3,000/- and therefore, he is entitled the benefit of Act 17 of 1977 and so it should be declared that the debt has been discharged as enumerated under the provisions of Act 17 of 1977. The said application was dismissed against which, C.R.P.1903/81 was filed. During the pendency of the Civil Revision Petition, as per Civil Miscellaneous Petition 2284 of 1982, this court had granted stay of execution proceedings on condition of the deposit of entire decree amount and it is submitted that the amount of Rs.1,800/- was deposited on 12.2.1982. Ultimately in the C.R.P, order passed by the Execution Court was set aside and the matter was remitted back to the Munsiff court for considering the question of the availability of the benefit to the judgment debtor of the benefits of Act 17 of 77. The trial court on consideration of the entire materials, held that the judgment debtor was having the liability of more than Rs.3,000/- and that he was also having an income of more than Rs.3,000/- and therefore he does not come within the purview of the definition of a debtor under Act 17 of 1977 and therefore dismissed the application. After dismissing the said application, since the sale has been confirmed, the trial court recorded full satisfaction of the decree and closed the E.P. It is against the said findings the civil revision petition is filed.

(3.) The learned counsel for the revision petitioner strongly contends that during the pendency of the civil revision petition there was an order by this Court to stay the execution on deposit of the entire decree amount with a liberty to withdraw the entire amount by the decree holder. Since, the amount was deposited as per the order of this court and as the said fact has not been taken note of by the court, the order suffers from illegality which requires interference at the hands of this Court. At the outset it has to be stated that the civil revision petition was filed against the order of the execution court on a finding that the judgment debtor was not entitled to the benefits of Act 17 of 1977. It is in that proceeding an order was made by this Court. The records and the submission make it clear that prior to the filing of this application, the sale had taken place and it has been confirmed and further the application to set aside the sale under order 21 Rule 90 of the C.P.C. has been dismissed. So the order to be understood in the following words ie., if the judgment debtor is able to establish that he is entitled to the benefit of Act 17 of 1977 then irrespective of the factum of the sale of the property the debt has to be declared as discharged and therefore there cannot be any proceedings against the property of the judgment debtor. Otherwise, it will not be proper to construe after confirming the sale and dismissing the application for setting aside the sale, this Court has ordered stay of other proceedings. It has also to be clearly stated that the sale as well as the application to set aside the sale had taken place much prior to the application filed for getting the benefits of Act 17 of 1977. Therefore, the said contention of the learned counsel for the revision petitioner that just because amount is deposited, it will not automatically give opportunity to the judgment debtor as if the sale is set aside. Therefore, the said contention is rejected.