KRISHNAMURTHI IYER Vs. SETHURAMA IYER AND ANR.

JUDGEMENT

(1.) The short facts relating to the civil miscellaneous second appeal are as follows. In execution of a decree in O.S. No. 535 of 1969 on the file of the District Munsif, Mannargudi. the properties covered under this appeal were brought to sale on 13th February, 1973. The sale was confirmed on 21st March, 1973. An application under Section 23(c) of the Tamil Nadu Act VIII of 1973, was filed on 30th April, 1973 invoking the provisions of the said Act and seeking to set aide the sale. The executing Court held that the petition was not maintainable. However on appeal in C.M.A. No. 278 of 1973 the learned Subordinate Judge, Tanjore, set aside the order on the ground that the order of the executing Court was laconic. In his view, this was a case to which Section 20(c) would apply and on that reasoning the sale was set aside.

(2.) The learned Counsel for the appellant Mr. M. Ramachandran, contends before me that the reasoning of the lower appellate Court is incorrect in law in view of the decision of N.S. Ramaswami, J., in R. Dharmalingam v. Nagalinga Kandiar, 1975 2 MadLJ 34, while the learned Counsel for the respondent would submit that having regard to the 90 days time limit prescribed under the said section, the application was competent and therefore no exception could be taken to the order of the lower appellate Court.

(3.) I have absolutely no hesitation in holding that the judgment of the lower appellate Court is incorrect. Tamil Nadu Act VIII of 1973 came into effect on 24th January, 1973. This is a case in which the sale which is sought to be set aside took place on the 13th February, 1973, in other words after coming into effect of Tamil Nadu Act VIII of 1973. To such a case Section 23(c) cannot be applied at all since, there is Section 19. It is open to the judgment. debtor to seek scaling down of the decree if he satisfied the requirements of the said Section 19. I find the judgment of N.S. Ramaswami, J., is a clear authority on this point. Applying the said decision, I set aside the order of the lower appellate Court and hold that the application under Section 23(c) of the judgment-debtor is not maintainable. However, it is made clear that if he satisfies the; requirements of either Section 19 or 20; of the Act it is open to him to invoke the provisions of that sections.