LAWS(PVC)-1940-9-23

NATESA AIYAR Vs. SINGARAVELU PILLAI

Decided On September 12, 1940
NATESA AIYAR Appellant
V/S
SINGARAVELU PILLAI Respondents

JUDGEMENT

(1.) This is an application to revise an order passed by the learned District Munsif of Negapatam on the 13 December, 1939, in E.A. No. 995 of 1939 in Small Cause Suit No. 267 of 1937. The applicant before the District Munsif was the decree-holder in the small cause suit. The petitioners in this case are the defendants in the small cause suit. The facts which it is necessary to mention are that while execution proceedings were pending, the judgment-debtors filed a petition O. P. No. 61 of 1939 before the Debt Conciliation Board, Negapatam, and in consequence of that the sale of the judgment-debtors property which had already been proclaimed was stopped on the 1 May, 1939, presumably under the provisions of Section 25 of the Madras Debt Conciliation Act, 1936. The judgment- debtors petition O.P. No. 61 of 1939 was dismissed by the Debt Conciliation Board on the 28 June, 1939. After that, dismissal the decree-holder proceeded with execution and the sale of the properties was fixed to take place on the 6th November, 1939. The learned District Munsif says that the judgment-debtors pleader applied for an adjournment of the sale on the ground that he wanted time to raise the decree amount and accordingly the sale was adjourned to the 27 November, 1939. Instead of paying up the decree amount the judgment-debtors proceeded to file O.P. No. 197 of 1939 before the Debt Conciliation Board for the conciliation of the same debt and the Board intimated to the District Munsif that such, a petition had been presented and requested the District Munsif to stay the sale proceedings in execution of the small cause decree. The decree-holder thereupon applied to the District Munsif to direct the sale advertised for the 4th December, 1939, to go on disregarding the fact that the judgment-debtors had filed an application before the Debt Conciliation Board. The decree-holder contended that the Debt Conciliation Board had no jurisdiction to stay the sale. The learned District Munsif after considering such authorities as there are, decided to follow a decision of Mr. Justice Stodart reported in Ellappa Chettiar, In re (1939) 2 M.L.J. 727. The learned Judge held in that case that a judgment-debtor is not entitled to obtain a stay under Section 25 of Madras Act XI of 1936 in any individual suit or proceeding more than once. It was argued before the learned Judge that upon a second application to the Conciliation Board the judgment- debtors were again entitled to stay. The" learned Judge thought that to admit such a proposition would lead to absurd results. There was nothing he said in the Act to prevent a debtor filing one application after another and if under Section 25 of the Act he could obtain stay of the suit or other proceedings as long as an application was pending before the Board he would be enabled to put his opponent to great trouble and inconvenience suffering little if any expense himself. That in the opinion of the learned Judge was not the intention of the law. This it may be said is the only direct decision upon this point so far pronounced.

(2.) In the case reported in Hirannayya V/s. Thippeswami (1938) 2 M.L.J. 1032, Mr. Justice Stodart and myself held that Section 25 of the Act was mandatory and that a sale in execution held in violation of the provisions of Section 25 is void. Learned Counsel for the petitioners relies strongly upon this decision which he says has been followed by other learned Judges. It does not however deal with the question with which this petition is concerned, namely, whether the Court of the3 District Munsif of Negapatam can be compelled to stay execution proceedings in respect of the same judgment debt more than once under the provisions of the Madras Debt Conciliation Act. Learned Counsel for the petitioners has referred me to a case decided by Mr. Justice Wadsworth in Roopchand Merlacha V/s. Sha Motaji Mokanaji (1940) 2 M.L.J. 283, but that case also does not touch the point now in issue. That was a case in which an application under Section 4 of Madras Act XI of 1936 had been rejected under the provisions of Section 7 of the Act. The second part of Section 7 says: The rejection of an application under this section shall not preclude the applicant from making a fresh application.

(3.) The learned Judge therefore held that although the statutory; bar imposed by Section 25 of the Act would cease to operate immediately upon the dismissal of an application under Section 7 yet upon a re-presentation of the application under the authority given by the second part of that section the bar would again come into operation. That is not the case with which I have to deal. Learned Counsel has also referred me to a case decided by Mr. Justice Horwill and. reported at Sundaralingam V/s. Venkataramanayya (1940) 2 M.L.J. 322. In that case the learned Judge held that even though an application might be frivolous or vexatious nevertheless under Section 25 of the Act the Court would be bound to stop all further proceedings in connection with the debt which was being considered by the Conciliation Board. There is no question there of successive petitions by the same debtor in respect of the same debt.