BANGARU CHETTIAR Vs. SAN BASHA SAHIB

JUDGEMENT

(1.) THE question that arises for our consideration in this case is whether the benefit of Sec. 23-C of the Tamil Nadu Agriculturists' Relief Act 1938, introduced by the Amending Act 8 of 1973, could be availed of by a judgment-debtor whose property has been sold after 24-1-1973, the date of coming into force of the said amending Act. This question has been referred to us by Mohan j. , in view of the divergent opinions now prevailing on the said question.

(2.) THE respondents herein obtained a decree against the appellant herein in O. S. 703 of 1970 on the file of the District Munsif Court, Cuddalore, and in execution of that decree applied for the sale of the judgment-debtor's properties in E. P. No. 1187 of 1973. The appellant filed an application under section 20 of the Act 4 of 1938 for stay of execution of the decree so as to enable him to apply under Section 19 of the Act for scaling down the decree debt. In that application, stay of execution was ordered on 28-4-1973. The appellant thereafter filed an application under Section 19 on 28-6-1973, in I. A. No. 2437 of 1973. On the ground that the appellant had not filed an application under Section 19 exactly within 60 days, the executing court proceeded with the execution and the judgment-debtor's properties were actually sold on 24-91973, notwithstanding the pendency of the application under Section 19. The sale has not, however, been confirmed as yet. The appellant's application under section 19 for scaling down the decree debt, was disposed of on 15-10-1973, and the decree debt had in fact been scaled down. The appellant thereafter filed e. A. No. 2692 of 1972 under Section 23-C in E. P. 1187 of 1973 on 22-101973 to have the sale set aside, but the said application came to be dismissed on 21-12-1973 on the ground that the sale having taken place after 24-4-1973, the date of the coming into force of the Amending Act 8 of 1973, Section 23-C cannot be invoked. An appeal therefrom was also dismissed by the Sub-Court, cuddalore, following the decision in Seshayya v. Venkataraman, 1941-2 Mad LJ 309 = (AIR 1942 Mad 278 ). The matter was taken to this court in C. M. S. A. No. 176 of 1974. Mohan J. , who heard the said appeal in the first instance, having regard to the conflict of judicial opinion on the interpretation of Section 23-C referred the case to a Full Bench.

(3.) TAMIL Nadu Agriculturists' Relief Act 4 of 1938 was enacted in order to provide relief to indebted agriculturists in the State. The said Act has been amended from time to time and the latest amendment was by Act 8 of 1973, which came into force on 24-1-1973. By virtue of the said amending Act, all debts payable by the agriculturists as on 1-3-1972 shall be scaled down in accordance with the provision of Chapter II of the Principal Act as amended. Sections 7 and 8 provide for the scaling down of all debts payable by an agriculturist as on 1st March 1972. Section 12 prescribes interest at 9 per cent old loans incurred before 1-3-1972 which had been scaled down and Section 13 prescribes interest at the rate of 9 per cent for the debts incurred after 1-31972. Section 9-A deals with usufructuary mortgages. Chapter IV deals with procedure in regard to pending suits and execution petitions. Sec. 19 occurring in that Chapter provides for amendment of decrees passed prior to 1st March 1972, by scaling down the decree debt. Section 20 enables the agriculturist debtors to apply for stay of the execution of the decrees until the court which passed the decree has disposed of an application under Section 19. The proviso to Section 20 says that if a judgment-debtor who had obtained stay of execution under that section does not apply under Section 19 within 60 days, the decree can be executed as it stands. Then comes Section 23, which is as follows--"where in execution of any decree any immoveable property, in which an agriculturist had an interest, has been sold or foreclosed on or after 1st October 1937, then notwithstanding anything contained in the Indian Limitation Act, 1908 or in the Civil Procedure Code (Act 5 of 1908) and notwithstanding that the sale has been confirmed, any judgment debtor, claiming to be an agriculturist entitled to the benefits of this Act, may apply to the court within 90 days of the commencement of this Act to set aside the sale or foreclosure of the property, and the court shall if satisfied that the applicant is an agriculturist entitled to the benefits of this Act, order the sale or foreclosure to be set aside and thereupon the sale (or foreclosure)shall be deemed not to have taken place at all. " section 23 which is really an extension of Section 7 enables the judgment-debtor to apply for setting aside a sale held on or after 1-10-1937, even if it has been confirmed, within 90 days of the commencement of the Act 4 of 1938.