CHELLAMMAL Vs. R T SEETHALAKSHMI AMMAL

JUDGEMENT

(1.) This civil revision petition has been filed against the order of the Subordinate Judge of Madurai in E. A. 1198 of 1979, which was an application filed on behalf of the third defendant in O. S. 379 of 1976, under S. 5 of the Limitation Act, 1963. The plaintiff filed the suit against her for recovery of a sum of Rs. 7450 due on a mortgage for a sum of Rs. 5000. The third defendant claimed that she was entitled to the benefits of the Tamil Nadu Debt Relief Act 40 of 1979. The Act came into force on the 15th July, 1979. It was published in the Official Gazette on 13-6-1979. By S. 21 of the said Act, it was provided that where, in execution of any decree, any immovable property in which a debtor entitled to the benefits of the Act had an interest, had been sold on or after the 14th days of July, 1978, then notwithstanding anything contained in the Limitation Act 1963, and notwithstanding that the sale had been confirmed, any judgment debtor claiming to be entitled to the benefits of the Act, may apply to the Court within 90 days from the date of the publication of the Act in the Tamil Nadu Government Gazette, to set aside the sale and the court should, if it is satisfied that the applicant was a debtor entitled to the benefits of the Act, order the sale to be set aside and thereupon, the sale would be deemed not to have taken place at all. Before passing such an order, it was necessary to give notice to the auction purchaser and other persons interested in the sale. In the present case, the sale took place on 27-11-1978. The sale having taken place after 14-71978, S. 21 would prima facie apply. The third defendant filed the application only on 18-9-1979. Calculated from 13-6-1979, the last day for filing of the application would be 11-9-1979. There was thus a delay of seven days in filing the application.

(2.) In explanation of this delay, in the affidavit in support of the application it was stated - "Today I am filing an application under S. 21 of the Act 40 of 1979. Under S. 21 of the Act of 1979, I ought to have filed the application on or before 13-9-1979. My advocate has been under the bona fide mistaken impression that since the Act had come into force on and from 15-7-1979. I am entitled to file that application till 15-10-1979. On the night of 14-9-1979, when we were preparing the petition, it had been noticed that 90 days have to be calculated from the date of publication of the Act and I ought to have filed the application before 13-9-1979. since 15th to 17th were holidays, I am filing this application today, 18th. Consequently, there is a delay of 4 days in filing the application under S. 21 of Act 40 of 1979. Hence I am filing this application to excuse the delay of four days in filing this application.

(3.) A counter affidavit was filed by the decree holder and the Court below held that the third defendant had not produced any affidavit from the advocate who had advised her wrongly, as was done in C. R. P. Nos. 1762 and 1763 of 1973 reported in P. S. Angaiya Raja v. A. K. D. Alagaraja, That decision appears to have been relied on, on behalf of the third defendant. The learned Subordinate Judge held that the application was not filed within time and that the application to excuse the delay could not be accepted. It is this order that is sought to be challenged by the third defendant in the present revision petition.