Bangaru Chettiar vs San Basha Sahib and Another

G. Ramanujam, J.—The question that arises for our consideration in this case is whether the benefit of Section 23-G of the Tamil Nadu

Agriculturists'' Relief Act, 1938 introduced by the Amending Act VIII of 1973 could be availed of by a judgment-debtor whose property has been

sold after 24th January, 1973, the date of, coming into force of the said amending Act. This question has been referred to us by Mohan, J. in view

of the divergent opinions now prevailing on the said question.

The respondents herein obtained a decree against the appellant herein in O.S. No. 703 of 1970 on the file of the District Munsif, Cuddalore and

in execution of that decree applied for the sale of the judgment-debtor''s properties in E.P. No. 1187 of 1973. The appellant filed an application

u/s 20 of the Act IV of 1938 for stay of execution of the decree so as to enable him to apply u/s 19 of the Act for scaling down the decree-debt.

In that application stay of execution was ordered on 28th April, 1973. The appellant thereafter filed an application u/s 19 on 28th June, 1973 in

I.A. No. 2437 of 1973. On the ground that the appellant had not filed an application u/s 19 exactly within 60 days, the executing Court proceeded

with the execution and the judgment-debtor''s properties were actually sold on 24th September, 1973 notwithstanding the pendency of the

application u/s 19. The sale has not, however been confirmed as yet. The appellant''s application u/s 19 for scaling down the decree-debt, was

''disposed of on 15th October, 1973 and the decree-debt had in fact been scaled down. The appellant, thereafter filed E.A. No. 2692 of 1972 u/s

23-C in E.P. No. 1187 of 1973 on 22nd October, 1973 to have the sale set aside, but the said application came to be dismissed on 21st

December, 1973 on the ground that the sale having taken place after 24th January, 1973, the date of the coming into force of the Amending Act

VIII of 1973, Section 23-C cannot be invoked. An appeal therefrom was also dismissed by the Sub-Court, Cuddalore, following the decision in

Turlapati Seshayya Vs. Bollapalli Venkataramayya, . The matter was taken to this Court in CM. S.A. No. 176 of 1974. Mohan, J., who heard the

said appeal in the first instance, having regard to the conflict of judicial opinion on the scope and interpretation of Section 23-C referred the case to

a Full Bench.

Tamil Nadu Agriculturists'' Relief Act IV of 1938 was enacted in order to provide relief to indebted agriculturists in the State. The said Act has

been amended from time to time and the latest amendment was by Act VIII of 1973 which came into force on 24th January, 1973. By virtue of

the said amending Act all debts payable by the agriculturists as on 1st March, 1972 shall be scaled down in accordance with the provisions of

Chapter II of the Principal Act as amended. Sections 7 and 8 provide for the scaling down of all debts payable by an agriculturist as on 1st March,

1972. Section 12 prescribes interest at 9 per cent for old loans incurred before 1st March, 1972 which had been scaled down and Section 13

prescribes interest at the rate of 9 per cent, for the debts incurred after 1st March, 1972. Section 9-A deals with usufructuary mortgages. Chapter

IV deals with procedure in regard to pending suits and execution petitions. Section 19 occurring in that Chapter provides for amendment of

decrees passed prior to 1st March, 1972 by scaling down the decree debt. Section 20 enables the agriculturist debtors to apply for stay of the

execution of the decrees until the Court which passed the decree has disposed of an application u/s 19. The proviso to Section 20 says that if a

judgment-debtor who had obtained stay of execution under that section does not apply u/s 19 within sixty days, the decree can be executed as it

stands. Then comes Section 23 which is as follows:

Where in execution of any decree any immovable property, in which an agriculturist had an interest, has been sold or foreclosed on or after the 1st

October, 1937, then notwithstanding anything contained in the Indian Limitation Act, 1908 or in the Code, of Civil Procedure 1908 (Act V of

1908), and notwithstanding that the sale has been confirmed any judgment-debtor claiming to be an agriculturist entitled to the benefits of this Act,

may apply to the Court within 90 days of the commencement of this Act to set aside the sale or foreclosure of the property, and the Court shall, if

satisfied that the applicant is an agriculturist entitled to the benefits of this Act, order the sale or foreclosure to be set aside and thereupon the sale

(or foreclosure) shall be deemed not to have taken place at all.

Section 23 which is really an extension of Section 7 enables the judgment-debtor to apply for setting aside a sale held on or after 1st October,

1937 even if it has been confirmed, within 90 days of the commencement of the Act IV of 1938.

Sections 23-A, 23-B and 23-C came to be introduced by Amending Acts XXIII of 1948, XXIV of 1960 and VIII of 1973 respectively,

enabling the Courts to set aside sales of immovable property at the instance of the agriculturist debtors in order to give benefit of the relative

amending Act. Section 23-A enables the Court to set aside sales of immovable property belonging to a judgment-debtor held on or'' after 30th

September, 1947, if the sale has not been confirmed before the commencement of the Act or 90 days have not elapsed from the confirmation of

sale at such commencement if the judgment-debtor applies to the Court within 90 days of such commencement or the confirmation of sale

whichever is later. Section 23-B merely extended the application of Section 23-A to sales held on or after 25th April, 1950 to ensure the

agriculturist debtors get the benefit of the amending Act XXIV of 1950. Similarly Section 23-C has been introduced by amending Act VIII of

1973 enabling the Court to set aside sales held on or after 1st March, 1972 if the sale had not been confirmed before the publication of Act VIII

of 1973 or 90 days have not elapsed from the confirmation of sale at such publication. The relevant portion of Section 23-C is extracted below:

23-C. Power of Court to set aside sales of immovable property in certain cases. - Where in execution of any decree, any immovable property in

which any person entitled to the benefits of the Tamil Nadu Agriculturists Relief (Amendment) Act, 1972, had an interest has been sold or

foreclosed on or after the 1st March, 1972 and the sale has not been confirmed before the publication of the said Act in the Tamil Nadu

Government Gazette, or ninety days have not elapsed from the confirmation of the sale or from the foreclosure at such publication then,

notwithstanding anything contained in the Limitation Act, 1963 (Central Act XXXVI of 1963) or in the Code of Civil Procedure, 1908 (Central

Act V of 1908) and notwithstanding that the sale has been confirmed any judgment-debtor claiming to be entitled to the benefits of the said Act,

may apply to the Court within ninety days of such publication or of the confirmation of the sale, whichever is later, to set aside the sale or

foreclosure of the property, and the Court shall if satisfied that the applicant is a person entitled to the benefits of the said Act, order the sale or

foreclosure to be set aside and thereupon the sale or foreclosure shall be deemed not to have taken place at all.

It is on the interpretation of Section 23-C there is cleavage of judicial opinion. One view is that Section 23-C can be invoked only in respect of

sales held on or after 1st March, 1972 but before the publication of the said Act and that it will not apply to sales held after 24th January, 1973,

the date of publication of the Act. The other view is that it applies to all sales held on or after 1st March, 1972 and that there is no scope for

restricting its operation to sales held between 1st March, 1972 and 24th January, 1973, the date of publication of the Act VIII of 1973.

In Dharmarajan v. Nagalinga Kandiar (1972) 2 M.L.J. 34, N.S. Ramaswami, J. had expressed the view that it applies only to sales held after

1st March, 1972 but before the publication of the Act VIII of 1973, that the words ""the sale has not been confirmed before the publication of the

said Act in the Tamil Nadu Government Gazette or 90 days have riot elapsed from the confirmation of the sale or from the foreclosure at such

publication"" occurring in the section clearly indicate that the sale which is sought to be set aside should have taken place prior to the publication of

Act VIII of 1973 as then alone the question of sale not having been confirmed before the publication of the Act, or 90 days having not elapsed

from such confirmation, would arise. In Doraiswamy Gounder and Another Vs. Parayammal, , Mohan, J,, followed the above decision of N.S.

Ramaswami, J. and held that the sale in that case having taken place on 13th February, 1973 after the coming into force of Madras Act VIII of

1973 on 24th January, 1973 Section 23-C cannot be invoked to set aside such a sale. Natarajan J., in Ambujammal v. Vedavalli and Ors.

C.M.A. No. 230 of 1974 has also taken the same view. This view finds support from the decision of a Division Bench of this Court in Turlapati

Seshayya Vs. Bollapalli Venkataramayya, , rendered u/s 23 of the Act and a decision of Viswanatha Sastri, J. in D. Ramakotayya v. T. Nagi

Reddi (1957) 1 An.W.R. 142 : (1957) An.L.T. 26, rendered u/s 23-A of the Act.

A different view has been expressed by Paul, J. in Thirukamu Reddiar v. Venkataswami Reddiar and Anr. C.M.A. No. 70 of 1974, and his

reasoning is this:

There is nothing in that section which would show that the benefits conferred by that section would not be available to a judgment-debtor if the sale

is held after the Act came into force. No doubt the words ""has been sold or foreclosed"" would indicate that the sale must have been a fait accompli

before the Act came into force. But those words are qualified by the subsequent words ""on or after the 1st March, 1972"". This would show that if

the sale had been held before 1st March, 1972 Section 23-G cannot be invoked. This does not mean that only in respect of sales held after 1st

March, 1972 and before 24th January, 1973 the date on which the Act came into force, applications u/s 23-G would lie. A reading of the entire

section would certainly show that Section 23-C was intended to be applicable even in cases of sales held after the commencement of the Act.

Sethuraman J. in Nagalakshmi Ammal v. Govindaswami Pillai and Anr. C.M.S.A. No. 130 of 1974 has also taken the same view, after

considering the earlier decision of the Division Bench in Turlapati Seshayya Vs. Bollapalli Venkataramayya, . In that case the sale took place on

26th March, 1973 but before the confirmation of the sale the judgment-debtor had applied for setting aside the sale u/s 23-G on the ground that he

had applied u/s 19 to scale down the decree. The application u/s 23-G for setting aside the sale on the ground that an application for scaling down

the decree debt is pending was allowed by the executing Court but on appeal the order setting aside the sale was set aside on the ground that

Section 23-G has no application. On a further appeal by the judgment-debtor, Sethuraman, J. allowed the appeal observing:

On a plain reading of this provision it comes for application where any immovable property, in which any person entitled to the benefits of the

amending Act had an interest, had been sold in execution of a decree on or after the 1st March, 1972. This condition is satisfied in the present case

because the sale was held after 1st March, 1972 i.e., on 26th March, 1973. If the sale had been confirmed after 1st March, 1972 and before the

publication of the amending Acts then the debtor claiming benefit, under the Act could apply for setting aside the sale. Another contingency was

also contemplated viz., of the judgment-debtor applying within ninety days from the confirmation of the sale.

The learned Judge distinguished the decision in Turlapati Seshayya Vs. Bollapalli Venkataramayya, , on the ground that it dealt with Section 23

which was somewhat differently worded and that cannot be applied to interpret the scope of Section 23-G which is differently worded, and which

clearly contemplates a case of an application for setting aside the sale being made within 90 days of its confirmation which was not the case in

Section 23.

Thus one point of difference is on the question whether the decisions rendered with reference to Sections 23 and 23-A will govern the

interpretation of Section 23-G.

Wadsworth and Patanjali Sastri, JJ. in Turlapati Seshayya Vs. Bollapalli Venkataramayya, , had held that Section 23 of Madras Act IV of 193S

had no application to sales held after the Act came into force. In that case the sale was held on 29th March, 1938, just a week after the Act came

into force. It was contended on behalf of the judgment-debtor that Section 23 applied in terms of all sales held on or after first October, 1937, the

only future or outer limit expressly laid down in the section being the date within which the application is to be made which is within 90 days of the

commencement of the Act and that within the said 90 days any judgment-debtor entitled to the benefit of the Act may apply to set aside the sale

even though the sale was held after the Act came into force. This contention was rejected by the Bench for two reasons. (1) Having regard to the

three verbs used in that section namely ""had an interest"", ""has been sold"" and ""may apply"", the section should be taken to have been drafted with

reference to the point of time at which the Act came into force and therefore the section should be taken to relate only to sales held between 1st

October, 1937 and the date of commencement of the Act; (2) There are alternative provisions found in the Act to relieve agriculturists whose

properties have been brought to sale after the commencement of the Act and it is therefore most unlikely that the Legislature contemplated the

application of Section 23 to sales held after the commencement of the Act.

In Ramakottayya v. T. Nagi Reddi (1957) 1 An.W.R. 142 : (1957) An.L.T. 26, the scope of Section 23-A came up for consideration. In that

case the judgment-debtor''s property was sold on 4th April, 1949 long after 25th January, 1949 the date of commencement of Madras Act XXIII

of 1948''and the application for setting aside the sale u/s 23-A was filed on 22nd April, 1949. The said application was opposed by the auction-

purchaser on the ground that Section 23-A cannot be invoked for setting aside that sale. It was contended on behalf of the judgment-debtor that

Section 23-A applies to all sales of properties of agriculturists held after 30th September, 1947, that if the intention of the Legislature was to

restrict the application of Section 23-A to sales held between 30th September, 1947 and the date of commencement of Act XXIII of 1948, a

specific provision would have been made to that effect, and that therefore, the words, of Section 23-A being clear and wide, its scope and

application cannot be curtailed with reference to any supposed intention of the Legislature. Viswanatha Sastri, J., rejected the said contention on

the ground that such a construction of Section 23-A would not only lead to palpable injustice and anomaly but will also have the effect of rendering

futile the execution proceedings and Court sales duly held under the provisions of the CPC and that therefore it is permissible to have recourse to

construction by implication and to draw inference or supply obvious omissions in order to avoid an abrogation of the provisions of the CPC with

regard to execution sales and palpable injustice to third parties. The learned Judge observed:

It is clear from the provisions of Section 23-A read as a whole that some restriction must be put upon the literal meaning of the general words and

the character and extent of the restriction could easily be ascertained from the context. Section 23-A refers to sales held on or after 30th

September, 1947 but the right to apply under the section is confined to cases where the sale has not been confirmed before the commencement of

Act XXIII of 1948 or 90 days have not elapsed from the confirmation of the sale at such commencement. The reference to the confirmation of the

sale before the commencement of the Act or within 90 days of such commencement indicates that it was only sales held before the Act that were

within the contemplation of the Legislature. The date, 30th September, 1947 was perhaps chosen because the legislative proposals which

subsequently became Act XXIII of 1948 had been mooted by that date. The reason for ignoring confirmation of sales made before the

commencement of the Act or within 90 days of such commencement was apparently to afford relief to debtors where execution proceedings had

been hurriedly rushed through by decree-holders in view of the impending legislation. Whatever be the reason, there is no justification for ignoring

the provisions of Section 23-A relating to confirmation of sales in arriving at a conclusion as to whether Court sales held after the coming into force

of Act XXIII of 1948 fell within the purview of Section 23-A. To accept the wide and unrestricted meaning sought to be put upon the, words of

Section 23-A by the appellant would be to attribute to the Legislature a wholly whimsical and wayward intention.

There cannot be any dispute that Sections 23, 23-A, 23-B and 23-C are all intended to serve a similar object and purpose. Each of these

sections was introduced whenever a new benefit was granted to an agriculturist debtor. The obvious purpose is to see that execution sales

hurriedly rushed through in anticipation of the legislation conferring that benefit are reopened. Therefore the above provisions which are intended to

serve a similar purpose should receive similar interpretation. Therefore, the decisions under Sections 23 and 23-A cannot altogether be ignored

while interpreting Section 23-C.

It is true, the decision in Turlapati Seshayya Vs. Bollapalli Venkataramayya, , dealt with Section 23 which was somewhat differently worded

than Section 23-A or Section 23-C and the Legislature should be taken to be aware of the said decision while enacting Section 23-A by

Amending Act XXIII of 1948 and Section 23-C by Amending Act VIII of 1973 with slightly different language. The decision in Ramakottayya v.

T. Nagi Reddi (1957) 1 An.W.R. 142 : (1957) An.L.T., however dealt with Section 23-A which is practically identical with Section 23-C. Even

though Section 23-A is somewhat differently worded than Section 23 the reasoning adopted in the latter case is substantially the same as in the

former. This is due to the fact that Sections 23 and 23-A being intended to serve a similar purpose notwithstanding the difference in language they

have to be interpreted in the light of the basic object sought to be achieved by enacting them.

It is contended by the learned Counsel for the respondent that the two reasons given in the former decision for limiting the application of

Section 23 to sales held before the commencement of the principal Act equally applied to the interpretation of Section 23-C as well. It is also

pointed out that Viswanatha Sastri, J., dealing with Section 23-A which used more or less the same language as Section 23-C without reference to

the earlier decision, gave the same reasoning for limiting the operation of Section 23-A to sales held before the commencement of Madras Act

XXIII of 1948, that the learned Judge felt that though Section 23-A if literally understood would apply to all sales held on or after 20th September,

1947 some restrictions on the literal meaning of the general words have to be ascertained from the context.

A close reading of Section 23-C indicates that it is in two parts, the first part dealing with the nature of the sales that are covered by the section

and the latter part dealing with the limitation for filing an application for setting aside those sales and that the first part refers to sales held on or after

1st March, 1972 which have not been confirmed before the commencement of the Amending Act of 1948 or ninety days have not elapsed from

the confirmation of the sale at such commencement. On the wording of the section it can be applied to sales which have not been confirmed before

the commencement of the amending Act or ninety days have not elapsed at the commencement. Though a sale held after the Act will also satisfy

the requirements set out in the section, as in respect of such a sale there is no question of confirmation before the Act, to give such an unrestricted

meaning to the words used in Section 23-A would be to attribute to the Legislature a wholly whimsical and wayward intention as pointed by

Viswanatha Sastri, J. Though Section 23-C if literally construed, is wide enough to include sales that had taken place after the Act, as there are no

words limiting the scope of the section, we think that having regard to the object with which the section was introduced its operation should be

restricted to sales held before the Act. We are of the view that though the section is not happly worded, the intention appears to be clear. The

reference to sales not confirmed at the commencement of the Act or ninety days have not elapsed at such com-mencerrent in the section is a clear

indication that the section is inapplicable to sales held after the Act. If the section is intended to have a wider operation so as to apply to sales held

after the Act, then reference to the factum of confirmation is quite unnecessary and it would have been sufficient to say that all sales after 1st

March, 1972 can be set aside at the instance of the judgment-debtor.

Section 23-C also uses the same language as Section 23-A and, on the wording of the section, it is applicable to sales not confirmed before

the publication of the Act or ninety days have not elapsed from the confirmation at such commencement. It is true, if the Legislature can think of

setting aside sales held before the commencement of the Act it can also provide for setting aside the sales held after the commencement of the Act,

if the sales have been taken place without reference to the benefit which the judgment-debtor has got under the provisions of the Act. The question

is whether the Legislature intended to do so. If such was the intention, the words ""sale"" has not been confirmed before the publication of the said

Act in the Tamil Nadu Government Gazette or ninety days have not elapsed from the confirmation of the sale or from the foreclosure would be

purposeless. In construing the scope of the first part of Section 23-G it is not possible to bring in aid the latter part dealing with limitation as has

been done in some cases. The latter part cannot enlarge the scope of the first part.

As already stated the main intention behind Sections 23, 23-A, 23-B and 23-G is to give an opportunity to the agriculturist-debtor to have his

debts scaled down. This object is achieved in cases where the sale is held after the Act by the debtor raising his plea that he is entitled to the

benefit of the principal Act as amended from time to time, even before the sale takes place. In such cases there is no necessity for the agriculturists

to wait till the sale takes place and then apply for setting aside the same, as they have an opportunity to have the debt scaled down even before the

sale. It is only in respect of sales held before the coming into force of the Act which had been confirmed or await confirmation, an opportunity has

to be given to the agriculturist to have his decree debt scaled down and to have the sale set aside if the sale has taken place for recovery of any

amount in excess of the debt as scaled down. This is the reasoning adopted by the division Bench in Turlapati Seshayya Vs. Bollapalli

Venkataramayya, , while interpreting Section 23 and by Viswanatha Sastri, J. in Ramakottayya v. T. Nagi Reddi (1957) 1 An. W.R. 142 : (1957)

An. L.T. 26, while interpreting Section 23-A. In interpreting a statutory provision, the intention of the Legislature has necessarily to be kept in

mind. Is it possible to attribute an intention to the Legislature in this case to give a further opportunity to an agriculturist to have the sale held after

the Act set aside on the ground that he is entitled to the benefits of that Act, even though he had an earlier opportunity to prevent the sale and to

have his debt scaled down under the same statute even before the sale takes place? In respect of sales held after the Act proceedings in execution

should have been pending at its commencement or initiated later. In respect of such proceedings the Act gives a sufficient remedy by way of

Sections 19 and 20 to see that the sale does not take place before the debt is scaled down. After giving such an opportunity to see that execution

sale is not held without scaling down the debt, it appears to be quite unnecessary and meaningless to give another or further opportunity to the

judgment-debtor to have the sale set aside on the ground that the decree debt has not been scaled down u/s 19. Such an opportunity is necessary

only in cases where the benefits of the Act could not be claimed and the decree debt scaled down before the sale is held. If such were the intention

of the Legislature, then it is unnecessary for the Legislature to provide a restriction with reference to the date of commencement of the Act or the

date of confirmation of sale. If the sales after the Act are also intended to be set aside the Legislature would not have fixed a time limit for

application with reference to the date of commencement of the Act or of the confirmation.

In this context the legislative history has also to ""be taken note of. While interpreting Section 23 a Bench of this Court held in Turlapati

Seshayya Vs. Bollapalli Venkataramayya, , that it will apply only to sales held before the commencement of the Act. The Legislature appears to

have accepted the decision as a correct interpretation of that provision and brought in Section 23-A by Madras Act XXIII of 1948; Section 23-B

by Madras Act XXIV of 1950 and Section 23-C by Madras Act VIII of 1973, for setting aside the sales that had taken place after 30th

September, 1947, 25th April, 1950 and 24th January, 1973 respectively with a view to enable the agriculturist-debtors to have the benefit of the

corresponding amending Acts. The introduction of Sections 23-A, 23-B and 23-C by the various amending Acts would be quite unnecessary if

Section 23 can be made applicable to all sales after the commencement of the principal Act. The fact that on each occasions when a benefit is

conferred on an agriculturist under a statute a new provision for setting aside a sale is made shows that earlier provisions for setting aside sales are

intended to have a limited application. The intention of the Legislature in enacting Sections 23-A, 23-B and 23-C appears to be to enable the

judgment-debtors to set aside sales held hurriedly-just before the introduction of each of the amending Acts conferring certain benefits on the

agriculturist-debtors. If the provisions in Sections 23, 23-A and 23-B are construed as applicable to all sales held after the commencement of the

relevant Acts, then there is no necessity for a separate provision like Section 23-C. Having regard to all these circumstances, we hold that Section

23-C cannot be invoked in respect of sales that had taken place after the publication of Act VIII of 1973.

However, the learned Counsel for the appellant points out that though the sale in this case has been held after the Act came into force the

confirmation has not yet taken place and therefore, the appellant can seek to set aside the sale on the ground that the decree debt has been scaled

down and therefore, the sale should not be confirmed. As the sale has been confirmed and possession of the property sold has not been delivered

to the auction-purchaser, execution proceedings should be taken to be pending and now that the appellant has succeeded in getting the decree

scaled down, he is entitled to ask the executing Court to. give effect to the order passed u/s 19 scaling down the debt. Even if Section 23-C has no

application to sales held after the Act, it does not mean the sale can be confirmed regardless of the effect of scaling-down application. Even then

the appellant cannot seek relief u/s 23-C but the relief of setting aside the sale can be claimed in proceedings under the Code of Civil Procedure.

At this stage, we have to consider the contention raised by the learned Counsel for the respondents that as the appellant had not filed an

application u/s 19 within 60 days from the date of the order u/s 20 his right to apply u/s 19 is lost. In this case the appellant had filed an application

and got an order u/s 20 on 28th April, 1973 staying the execution sale. He in fact filed an application u/s 19 in LA. No. 2437 of 1973 on 28th

June, 1973. According to the appellant the application u/s 19 was filed on the 60th day and therefore it is in time. The respondents on the other

hand contend that the application u/s 19 has been filed after a delay of two days, and therefore it should not have been entertained. The Court

which passed the decree however entertained the application u/s 19 as being in time and as also disposed of the same on 15th October, 1973

scaling down the decree debt to Rs. 399-65 after giving credit to the amounts paid earlier. Thus the appellant has succeeded in having the decree

debt scaled down u/s 19. Therefore so long as the execution sale has not been confirmed, the executing Court has to give effect to the order

passed u/s 19. The learned Counsel for the respondents would contend that the order dated 15th October, 1973 in I.A. No. 2437 of 1973 cannot

be taken to be valid as the appellant has lost his right to file an application u/s 19 as he has not filed an application within 60 days. Apart from the

fact that the lower Court has entertained the application u/s 19 and granted relief to the appellant, even assuming that the application u/s 19 was

filed after 60 days, it cannot be said that the appellant has lost his right to file an application u/s 19. It is true the decisions referred to by the learned

Counsel for the appellant in Kumaraswami Pillai and Another Vs. Thiruvengadatha Aiyangar, , and Puthukuzhi Neelakantam Nambisan''s son

Karnavan Sankaran Nambisan Vs. Koottal Manikkam Devaswam Utama Manikkam Keralan Thachutayya Kaimal Avergal, , seem to support the

respondent''s stand. However we are not inclined to agree with the view expressed in these cases that the proviso to Section 20 should be

construed as providing a period of limitation for filing an application u/s 19.

The proviso to Section 20 is as follows:

Provided 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 u/s 19 or where an application has been so made and is rejected, the decree shall be executed as it stands, notwithstanding

anything contained in this Act to the contrary.

Construing the proviso a Division Bench of this Court in Kumaraswami Pillai and Another Vs. Thiruvengadatha Aiyangar, , took the view that the

proviso fixes a period of limitation for an application u/s 19 and within 60 days contemplated by Section 20, and that if steps are not taken u/s 19

he cannot thereafter file an application under that section. In Puthukuzhi Neelakantam Nambisan''s son Karnavan Sankaran Nambisan Vs. Koottal

Manikkam Devaswam Utama Manikkam Keralan Thachutayya Kaimal Avergal, , another division Bench had held that if a stay has been ordered

u/s 20, then the proviso to that section is attracted so as to make it incumbent on the judgment-debtor to file an application for relief u/s 19 within

sixty days of the stay order. N. Section Ramaswami, J., in a recent decision in C. M. A. No. 396 of 1975 has also followed the earlier decision in

Kumaraswami Pillai and Another Vs. Thiruvengadatha Aiyangar, , and held that once the judgment-debtor invokes the jurisdiction of the Court u/s

20 and obtains stay _ of execution then undoubtedly a period of limitation is prescribed by the proviso which specifically says that unless an

application u/s 19 is filed within 60 days of the order of stay the decree shall be executed as it stands. If the above decisions merely laid down that

the decree as it stands can be executed if the judgment-debtor does not file an application within 60 days from the date of the order of stay u/s 20,

no exception can be taken as that position is clear from the terms of the proviso itself. However, if those decisions are taken as laying down that

the judgment-debtor has no right to file an application u/s 19 after the period of 60 days, we are of the view that it is not the correct legal position.

The proviso merely says that if the judgment-debtor does not apply to the Court which passed the decree u/s 20 for relief u/s 19 or where the

application has been so made and rejected, the decree can be executed as it stands notwithstanding anything contained in the Act to the contrary.

The proviso enables the executing Court to proceed with the execution of the decree as it stands if the judgment-debtor does not file an application

u/s 19 within 60 days from the date he obtains an order u/s 20. The proviso does not say that the right of the judgment-debtor to file an application

for relief u/s 19 is taken away or comes to an end. The proviso which deals with the powers of the executing Court to execute the decree as it

stands cannot be construed as curtailing the power of the Court which passed the decree to entertain and deal with an application u/s 19 by the

judgment-debtor. The words ""notwithstanding anything contained in this Act to the contrary"" refer only to the restrictions imposed by the Act on

the executing Court, particularly by Section 7 which prohibits 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 of the Act. The execution of the decree as it is by that Court cannot be taken as putting an end

to the benefits granted to the judgment-debtor by the provisions of the Act particularly by Section 19. Even if the sale has taken place in execution

of the decree as it stands, still the judgment-debtor can file an application u/s 19 and have the decree scaled down and claim the benefit of scaling

down at the stage of the application of the sale proceeds. Where an application is made by the judgment-debtor for scaling down after the lapse of

60 days from the grant of stay u/s 20 and the decree debt has been scaled down, it is not possible for the sale even if it had taken place as per the

proviso, to be confirmed in the face of the order scaling down the debt. It has been held by Horwill, J., in Vennavilli Lakshminarasimha Rao Vs.

Garapati Muneyya, that merely because full satisfaction of the decree has been entered up as a result of the sale and the confirmation thereof, it

does not mean that execution is at an end, and Section 20 can, therefore, be invoked to stay the delivery of the property to the auction-purchaser

pending the application for scaling down the decree debt. We are not ''therefore'' inclined to construe the non abstante clause occurring in the

proviso as excluding the application of the Act to the judgment-debtor after the 60 days referred to therein. After the scaling down of the debt the

further execution proceedings after the sale can proceed only on the basis of the decree as scaled down. The execution of a decree cannot be said

to be complete unless the properties are actually delivered to the auction-purchaser. We cannot therefore agree with the learned Counsel for the

respondents that the appellants application for relief u/s 19 cannot be sustained after the period of 60 days.

We, therefore, dismiss the appeal holding that Section 23-C cannot be Invoked to set aside the sale held in this case, though it is open to the

judgment-debtor to raise the plea that the decree debt had been scaled down u/s 19 of the Act at the stage of confirmation of sale. There will be

no order as to costs.