VEPA NAGASURYA VENKATA JOGA KUSUMA HARNATH BEING MINOR BY HIS MOTHER, BEPU SEETHAMMA Vs. CHAKKA BHAVANARAYANA

JUDGEMENT

(1.) The order out of which this civil revision petition arises was passed by the Subordinate Judge of Vizagapatam on an application made by the Petitioner under Section 20 of the Agriculturists Relief Act. A mortgage decree had been passed against the joint family to which the petitioner now belongs, but on the date when the decree was passed the petitioner was not born. Section 20 of the Agriculturists Relief Act provides that: Every Court executing a decree passed against a person entitled to the benefits of this Act, shall on application, stay the proceedings until the Court which passed the decree has passed orders on an application made or to be made under Section 19. The learned Subordinate Judge dismissed the application on the ground that as the petitioner was not born when the decree was passed, he could not be regarded as a person against whom the decree is passed as to be able to maintain the application under Section 20. Section 19 of the Agricultures Relief Act provides that a member of the family against whom a decree for repayment of a debt has been passed can apply for an amendment of the decree. Notwithstanding the provisions of Section 19, however, the learned Subordinate Judge was of opinion that petitioner could not maintain an application for stay under Section 20, because an order of stay could be given only to a person against whom the decree sought to be executed was passed. Section 20 does not say precisely that stay can only be given to a person against whom the decree was passed. It says that every Court executing a decree passed against the person entitled to the benefits, of the Act shall on application stay the proceedings.

(2.) It is argued by learned Counsel for the petitioners that the application need not be necessarily by a person against whom a decree was passed but by a person entitled to the benefits of Section 19 to which Section 20 of the Agriculturists Relief Act is ancillary. In support of this petition he has referred me to a decision of Patanjali Sastri and Koman, JJ., in Sankaran Nambisan V/s. Thachuthayya Kaimal (1945) 2 M.L.J. 535. In that case the question whether a person entitled to the benefits of Section 19 but against whom a decree had not actually been passed was entitled to obtain a stay under Section 20 was not directly in issue. It was, however, observed by Patanjali Sastri, J., in his judgment that Section 19 of the Act: expressly empowers, in the case of a debt due by a joint Hindu family, any member of the family, whether or not he is the judgment-debtor to apply for relief under that section, and as the relief of stay under Section 20 is only ancillary to the application for the relief obtainable under Section 19, it must follow that any member of a joint family in the case of a family debt, must also have the power to apply for stay under Section 20. No doubt, as already observed, the question in Sankaran Nambisan V/s. Thachuthayya Kaimal (1945) 2 M.L.J. 535 was whether the proviso to Section 20 would apply so as to bind the family even though the application under Section 20 was made by a junior member of the family. Patanjali Sastri, J., however has pointed out that Section 20 is ancillary to Section 19 and that being so, it seems to me the expression " on application " should be construed as meaning " on an application by a person entitled to the benefits of Section 19."

(3.) In this view the petition is allowed with costs.