SARASWATHI AMMAL Vs. ARABUSA SAHIB

JUDGEMENT

(1.) This petition raises questions under Madras Act IV of 1938 and arises out of an application under Section 19 of that Act.

(2.) The lower Court held that an amount realised in execution of the decree after 1 October, 1937, could not be appropriated by the decree-holder to interest accruing due before 1 October, 1937, so as to nullify the effect of the application of Section 8(1) of the Act. The appellate Court took the view that when the decree-holder had appropriated to interest money received after 1 October, 1937, to re-adjust that money to principal after wiping off interest which accrued due on 1 October, 1937, would amount to the ordering of a refund which would be opposed to the provisions of Sub-section (4) of Section 8. That decision is clearly erroneous in the light of the Bench decision in Suryanarayanamurthy v. Viranna , and the decision of the District Munsif is correct on this point.

(3.) The respondent however seeks to support the order of the learned Additional District Judge on another ground. The proceedings under Act IV started with an application under Section 20 filed on 22nd August, 1938, at a time when the sale in execution was pending. This application was posted for hearing to 5 September, 1938 and the sale was adjourned to the same date. On 5th September, 1938, the application under Section 20 was dismissed for default. The application under Section 19 was not filed until 29 October, 1938. It is contended that the applicant cannot be in a better position when his application under Section 20 has been dismissed than he would have been if a stay had been ordered in the first instance and also that the dismissal of his application under Section 20 bars an application under Section 19. It seems to me that there is no substance in either of these contentions. It was decided by a Bench in Kumaraswami V/s. Thiruvengadatha , that the period prescribed under Section 20 is a period of limitation arising in the circumstances contemplated in that section, that is to say, on the grant of a stay; and the learned Chief justice observed: So long as a debt is enforceable a debtor has a right to apply at any time for the scaling down of the debt, except in the circumstances contemplated by Section 20.