PANDURANGA NAICKER Vs. THIRUGNANA MUDALIAR

JUDGEMENT

(1.) THE appellant filed an application under Section 23 -C Act IV of 1938 as amended by Madras Act 8 of 1973 to set aside a sale held on 17 -1 -1973 in execution proceedings R. E. P. 518 of 1973 in O.S. No. 421 of 1961 on the file of the District Munsif's Court, Tiruvannamalai. The first respondent decree -holder contended that that application filed by the judgment -debtor was beyond time and was barred by limitation. The learned District Munsif, after referring to the relevant statutory provisions, and after hearing the parities rejected the application as out of time and the appeal in C. M. A. No. 20 of 1923 to the Court of the Subordinate Judge, Tiruvannamalai was unsuccessful. A Civil Revision Petition was filed as against the order of rejection of the learned Subordinate Judge. Justice V. Ramaswami considered two questions which arose for consideration in the Civil Revision Petition. The first question related to the maintainability of the appeal against the order passed by the learned District Munsif and the second question was whether the application filed by the petitioner on 5 -6 -1973 to set aside the court sale held on 17 -1 -1973 was within or beyond time and not in accord with Section 23 -C of the Tamil Nadu Agriculturists Relief Act, 1938 as amended in 1973. The learned Judge felt that he was not inclined to accept the ratio in Sethurama Thevar v. Kameetha Rowther, 1953 -2 Mad LJ 742 : (AIR 1954 Mad 368) and was of the view that that decision required reconsideration and directing the Civil Revision Petition as originally filed, but now converted into a Civil Miscellaneous Second Appeal bearing No. 158 of 1974 to be placed before a Division Bench. Mr. T.R. Ramachandran appearing for the respondents before us in his anxiety to support the orders of the Courts below referred to a few events which are necessary for us to set out before considering the law. It is common ground that the property of the petitioner as judgment -debtor was brought to sale and was purchased by the second respondent on 17 -1 -1973. Before the sale could be confirmed, an amending Act 8 of 1973, which introduced Section 23 -C of the Act, came into force from 24 -1 -1973. Thereafter on 5 -6 -1973, the appellant filed an application to set aside the sale taking advantage of the liberalised provisions as regards the point of time during which an application to set aside a sale in the above circumstances could be made. In fact, even on the date when the application for setting aside the sale was filed, the sale was not confirmed. It is said that such confirmation of the sale took place on 21 -6 -1973. Mr. Ramachandran's contention is that the application is barred by time, as it has not been filed with in 90 days from the date of the publication of the amended Act in the Tamil Nadu Government Gazette. On a reading of Section 23 -C it is said that the limit of 90 days provided for a litigant to file applications to set aside a sale are referrable only to sales which took place on or after the 1st March, 1972 and the sale has not been confirmed before the publication of the Act. As the present sale has not been confirmed before the publication of the said Act, it is seriously contended that the outer limit by which an application to set aside the sale could be made is 90 days from the date of the publication of the Act. If the application under consideration was filed within 90 days from 24 -1 -1973, the learned counsel's contention is that it would be in time. But, as the application has been made on 5 -6 -1973 which is beyond 90 days from 24 -1 -1973, the application is beyond time. Reliance is placed upon the decision in Sethurama Thevar v. Kameetha Rowther, 1953 -2 Mad LJ 742 : (AIR 1954 Mad 368). On the other hand, the learned counsel for the appellant would say that so long as the sale has not been confirmed, the aggrieved person has 90 days time to set aside such sales from the date of confirmation and as the present application has been filed even prior to the date of the confirmation, the application is in time. It is said that the outer limit as provided under the section in the matter of filing such application falls under two broad situations. Firstly, an application has to be filed within 90 days from the date of the publication of the Act in the local Gazette and secondly within 90 days from the date of the confirmation of the sale whichever is later. If, therefore, the confirmation has not taken place on the date when the application has been filed, the question as to the bar of limitation would not at all arise. V. Ramaswami, J., while referring the subject to a Division Bench has summarised the five situations which might arise under Section 23 -C. Before detailing them, we shall refer to the section. It reads as follows: -

(2.) THE five types of situations referred to by our learned brother one: - (1) No confirmation of the sale prior to the publication of the Act: (2) A confirmation of the sale prior to the publication of the Act and such confirmation was within three months of the Act: (3) Confirmation of the sale prior to the publication of the Act, but more than three months prior to the publication; (4) A confirmation subsequent to the Act but within 90 days after such publication, and (5) A confirmation of the sale more than three months subsequent to the publication of the Act. The learned Judge, no doubt, has very carefully scanned the various situations that are inbuilt in the section itself. We are concerned however in this case with a sale which has been confirmed more than 3 months subsequent to the publication of the Act and with reference to an application filed by the judgment -debtor to set aside such a sale under Section 23 -C, but before the date the date of confirmation of the sale.

(3.) THE Civil Miscellaneous Second Appeal is allowed and the order of the Lower Court is set aside and the subject matter is remanded to the file of the District Munsif, Tiruvannamalai, for a full hearing on the merits.