RATHNASABAPATHI AYYAR Vs. SUBRAMANIA PILLAI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent. The question involved is one of interpretation of Section 25 of the Madras Debt Conciliation Act, 1936. The section reads as follows: When an application has beep made to a Board under Section 4, any suit or other proceeding then pending before a Civil Court in respect of any debt for the settlement of which application has been made shall not be proceeded with until the Board has dismissed the application. The appellant says that the section means that a Court which proceeds to order the sale of the property in execution of a decree when an application has previously been made to a Debt Conciliation Board under Section 4 of the Act and is still pending acts without jurisdiction and its order can be ignored.

(2.) In O.S. No. 112 of 1936 of the Court of the District Munsiff of Tiruvarur the second, third and fourth respondents obtained a mortgage decree against the appellant. The decree was made final, whereupon the decree-holders proceeded in execution. On the 31 December, 1942, the judgment-debtor applied for a stay of the proceedings on the ground that he had applied to the Debt Conciliation Board of Negapatam, under Section 4 of the Act. His application was supported by an affidavit sworn by himself. It was opposed by the decree- holders and it was adjourned to the 7 January, 1943, to enable them to file a counter affidavit. On the 7 January, 1943, the hearing was adjourned to the next day when the decree-holders filed an affidavit denying that any application had been made by the judgment- debtor for the conciliation of his debts. On the strength of the affidavit of the decree-holders the District Munsiff decided to proceed with the sale, but in his order he pointed out that the decree-holders had to take " the risk." The sale was held on the same day and the mortgaged property was purchased by the first respondent. The sale was confirmed in due course.

(3.) On the 13 February, 1943, the appellant filed an application in the District Munsiff's Court asking for an order setting aside the sale on the ground that the Court had no jurisdiction to sell the property. When the appellant applied for a stay of the execution proceedings on the 31 December, 1942, it was a fact that he had filed an application for the conciliation of his debts. His application of the 13 February, 1943, was based both on the ground that there had been material irregularity in the proclamation and conduct of the sale and on the ground of want of jurisdiction in the Court. So far as the petition asked for relief on the ground of material irregularity in the proclamation and the conduct of sale was concerned, it was out of time, but it was within time so far as it concerned the question of jurisdiction, as that contention fell within the decision of the Full Bench of this Court in Rajagopala Iyer v. Ramanujachariar1.