DORAIRAJAN Vs. MOHAMMED KUTHOOSE

JUDGEMENT

(1.) The judgment -debtor who could not persuade the executing court to stay the execution of the decree passed against him under S. 20 of Act IV of 1938 is the appellant. The controversy in the appeal is virtually one centered around the scope of the discretion of the executing court to refuse stay of execution proceedings when a judgment debtor claiming to be an agriculturist, files an application under S. 20 of Act IV of 1938 and prays for stay. Sec. 20 of Act IV of 1938 read as follows: - -

(2.) I may only refer to the decision in Sambanda Chetty v/s. Muthu Chettiar, A.I.R. 1942 Mad. 398 where Horwill, J. has also expressed that the application under S.19 of Act IV of 1938 can be filed at any stage and that the terms of S. 20 of the Act leave no discretion to the executing court to reject a prayer for stay. The learned Judge has gone a step -further and held that even if the application for scaling down was made belatedly or appeared to be not made in good faith, the hands of the execution court, were tied and the court had no option to refuse stay of the execution of the decree till the judgment -debtor exercises his right to file an application under S.19 and have it adjudicated by the Court which passed the decree.

(3.) The learned counsel for the respondent raises a further contention that an appeal against an order parsed under S.20 of Act IV of 1933 is not maintainable. This contention is based upon a Bench decision of this court in Swaminatha Odayar v/s. Srinivasa Aiyar : (1939) 2 M.L.J. 495 but that decision has been overruled by a Full Bench of this Court in Desikachariar v/s. Ramachandra Reddiar : (1951) 1 M.L.J. 23. In the result, the appeal succeeds and the order of the learned Subordinate Judge is set aside. The interim stay granted by this Court will continue to be in force for a period of 6 days from the date of receipt of the records by the lower court. If no application under S.19 of Act IV of 1938 is filed by the judgment debtor within that period the stay will stand vacated and the execution will proceed. No costs.