R. DHARMARAJAN Vs. NAGALINGA KANDIAR AND ANR.

JUDGEMENT

(1.) THE question in this civil miscellaneous appeal is whether Section 23C of Act IV of 1938 hereinafter referred to as the Act is applicable to an execution sale which took place after the commencement of the Tamil Nadu Agriculturists Relief (Amendment) Act 1972 herein after referred to as Act VIII of 1973. The money decree was passed on 27th October, 1971. In pursuance of the decree execution was taken and the property was sold on 19th September, 1973. It had been confirmed on 31st October, 1973. The application for setting aside the sale purporting to be under Section 23G of the Act was filed on 21st January, 1974. The executing Court has dismissed the application holding that the said provision does not apply to a sale which took place after the publication of Act VIII of 1973. The said Act namely Act VIII of 1973, had been published in the Tamil Nadu Government Gazette on 24th January, 1973. Therefore the Court sale itself was very much subsequent to the publication of the said Act.

(2.) IT is contended on behalf of the judgment -debtor, who is the appellant before me, that a proper reading of Section 23C would make it applicable even to a sale which was held after the publication of Act VIII of 1973. The learned Counsel stressed the latter part of Section 23C which prescribes the period within which the application can be made. It is pointed out that under that part of the section an application can be made within 90 days of the publication of Act VIII of 1973 or of the confirmation of the sale which ever is later and that the application in the present case being within 90 days of the date of the confirmation of the sale, though not within 90 days from the date of publication of Act VIII of 1973, the application has to be entertained.

(3.) THE judgment -debtor's remedy in the case of a decree as in the present case was to apply to the Court which passed the decree to scale down the decree under Section 19 of the Act. It is not in dispute that after the decree when the decree -holder took out execution the judgment -debtor had been taking part in the proceedings and he had been paying parts of the decree amount. He had not availed of the provision contained in Section 19 of the Act in getting the decree scaled down. Having failed to do so it is not open to him to file an application under Section 23C for having the sale set aside, when the sale itself is very much after the publication of Act VIII of 1973.