CHINNASWAMI CHETTY Vs. PARVATHIAH CHETTY

JUDGEMENT

(1.) This case raises a question under Secs.19 and 20 of Madras Act IV of 1938 on rather peculiar facts. The petitioner was the judgment-debtor and when proceedings in execution were pending, he obtained an order of stay under Section 20 of Act IV in August, 1939. He did not follow up that stay order with an application under Section 19 within sixty days, as contemplated in the proviso to Section 20. Apparently, though the facts are not on record, the judgment-debtor was taking proceedings before the Debt Conciliation Board and the pendency of these proceedings was regarded as a sufficient reason for not proceeding at once under Section 19. Whatever be the reason, both parties remained inactive; the execution of the decree was abandoned and nothing was done by the judgment-debtor to get the decree scaled down until 9 September, 1940, i.e., more than a year after the stay order. This application under Section 19 was opposed by the decree-holder and on 27 September, 1940, the decree-holder filed a fresh execution petition praying for the execution of the decree, as it stood without any scaling down. We do not know what were the grounds on which the decree- holder opposed the application under Section 19, or whether he raised the contention that the application was barred, not having been preferred within sixty days of the grant of the stay under Section 20. The fact remains that on 27 November, 1940, notwithstanding the objection of the decree-holder, the decree was amended under Section 19. Thereafter, the decree-holder attempted to execute the unamended decree and an objection was taken by the judgment-debtor that by reason of the amendment under Section 19,, the only decree which could be executed was the amended decree. The executing Court passed a considered order rejecting this contention on the 25 March, 1941. On the 17 April, 1941, the judgment- debtor, apparently seeking a more formal order, prayed for the same reasons already advanced, that the Court should inquire into the executability of the execution petition and should stay execution proceedings meanwhile. This petition was dismissed on the ground that it raised the same contentions already overruled.

(2.) A preliminary objection was taken to the revision petition on the ground that it is preferred not against the order of the 25 March overruling the objections, but against the order of the 30 June declining to reconsider the previous order. It seems to me that what the petitioner substantially seeks to get revised is the lower Court's decision that his objections are invalid. If, however, he was wrong in treating the first order as a mere finding and asking for a definite decision as to the executability of the petition before coming up in revision, the only result would be that the revision petition would be a little belated and in the circumstances of the case, I have no doubt that the delay could properly be excused. I am therefore treating this revision petition as a petition to revise the decision in the order of the 25 March, 1941.

(3.) Turning to the merits of the order, the trial Court reads the proviso to Section 20 as containing a mandatory direction to the executing Court to execute the decree in its unamended form, notwithstanding anything which may have taken place under the Act in the interval between the passing of the stay order and the final process of execution. The proviso states: that where within 60 days after the application for stay has been granted the judgment-debtor does not apply to the Court which passed the decree for relief under Section 19 ... the decree shall be executed as it. stands notwithstanding anything contained in this Act to the contrary. I have no doubt that this clause was enacted with reference to the ordinary case in which a stay is obtained and nothing is done by the decree-holder before execution is sought to be taken after the 60 days period has elapsed. The words "notwithstanding anything contained in this Act to the contrary" presumably have reference to the provisions of Section 7 which prohibit the execution of a decree against an agriculturist in so far as a decree is for an amount in excess of the sum as scaled down under Chapter II. They are not in my opinion intended to refer to circumstances such as those with which we are now confronted where the decree has in fact been amended before execution has actually taken.