RATHNASABAPATHI AYYAR Vs. SUBRAMANIA PILLAI AND ORS.

JUDGEMENT

(1.) THIS is an appeal under Clause 15 of the Letters Patent. The question involved is one of interpretation of Section 25 of the Madras Debt Conciliation Act, 1936. The section reads as follows:

(2.) IN O.S. No. 112 of 1936 of the Court of the District Munsiff of Tiruvarur the second, third and fourth respondents obtained a mortgage decree against the appellant. The decree was made final, whereupon the decree -holders proceeded in execution. On the 31st December, 1942, the judgment -debtor applied for a stay of the proceedings on the ground that he had applied to the Debt Conciliation Board of Negapatam, under Section 4 of the Act. His application was supported by an affidavit sworn by himself. It was opposed by the decree -holders and it was adjourned to the 7th January, 1943, to enable them to file a counter affidavit. On the 7th January, 1943, the hearing was adjourned to the next day when the decree -holders filed an affidavit denying that any application had been made by the judgment -debtor for the conciliation of his debts. On the strength of the affidavit of the decree -holders the District Munsiff decided to proceed with the sale, but in his order he pointed out that the decree -holders had to take " the risk." The sale was held on the same day and the mortgaged property was purchased by the first respondent. The sale was confirmed in due course.

(3.) THE appellant's application to the Debt Conciliation Board was dismissed by the Board on the 31st July, 1943. His application for the setting aside of the sale was heard on the 4th September, 1943. It was dismissed because the District Munsiff considered that there was still no satisfactory proof that the appellant had applied to the Debt Conciliation Board and that no useful purpose would be served by allowing the application because it would merely mean that the property would have to be sold again. The appellant appealed to the Subordinate Judge, who having admitted copies the appellant's petition to the Debt Conciliation Board and the order of dismissing it, allowed the appeal on the ground that the District Munsiff had no jurisdiction to order a sale of the property on the 8th January, 1943, because the petition before the Debt Conciliation Board was still pending. The first respondent then appealed to this Court. The appeal was heard by Happell, J., who allowed it. The learned Judge considered that the order of the District Munsiff directing the sale to be proceeded with could not be said to have been passed without jurisdiction because there was no satisfactory proof before him that the appellant had filed an application under Section 4 of the Debt Conciliation Act. The appeal is from the judgment of the learned Judge, who granted the necessary certificate.