Chellammal vs R.T. Seethalakshmiammal and Another

V. Sethuraman, J.—This civil revision petition has been filed against the order of the Subordinate Judge in Madurai in E.A. No. 1198 of

1979, which was an application filed on behalf of the third defendant in O.S. No. 379 of 1976, u/s 5 of the Limitation Act, 1963. The plaintiff filed

the suit against her for recovery of a sum of Rs. 7,450 due on a mortgage for a sum of Rs. 5,000. The third defendant claimed that she was entitled

to the benefits of the Tamil Nadu Debt Relief Act, XL of 1979. This Act came into force on the 15th of July, 1979. It was published in the Official

Gazette on 13th June, 1979. By Section 21 of the said Act, it was provided that where, in execution of any decree, any immovable property in

which a debtor entitled to the benefits of the Act had an interest, had been sold on or after the 14th day of July, 1978, then notwithstanding

anything contained in the Limitation Act, 1963, and notwithstanding that the sale had been confirmed, any judgment-debtor claiming to be, entitled

to the benefits of the Act, may apply to the Court within ninety days from the date of the publication of the Act in the Tamil Nadu Government

Gazette, to set aside the sale and the Court should, if it is satisfied that the applicant was a debtor entitled to the benefits of the Act, order the sale

to be set aside and thereupon, the sale would be deemed not to have taken place at all. Before passing such an order, it was necessary to give

notice to the auction-purchaser and other persons interested in the, sale. In the present case, the sale took place on 27th November, 1978. The

sale having taken place after 14th July, 1978, Section 21 would prima facie apply. The third defendant filed the application only on 18th

September, 1979. Calculated from 13th June, 1979, the last day for the filing of the application would be 11th September, 1979. There was thus a

delay of seven days in filing the application.

In explanation of this delay, in the affidavit in support of the application it was stated:

Today I am filing an application u/s 21 of the Act XL of 1979. u/s 21 of the Act, 1979, I ought to have filed the application on or before 13th

September, 1979."" My advocate has been under the bona fide mistaken impression that since that Act had come into force on and from 15th July,

1979, I am entitled to file that application till 15th October, 1979. On the night of 14th September, 1979, when we were preparing the petition, it

had been noticed that ninety days have to be calculated from the date of publication of the Act and I ought to have filed the application before 13th

September, 1979. Since 15th to 17th were holidays, I am filing this application today (18th). Consequently, there is a delay of 4 days in filing the

application u/s 21 of Act XL of 1979. Hence I am filing this application to excuse the delay of four days in filing this application.

A counter-affidavit was filed by the, decree-holder and the Court below held that the third defendant had not produced any affidavit from the

Advocate who had advised her wrongly, as was done in P.S. Angayya Raja, a firm, by Partner v. A.K.D. Alagu Raja Hakdar of Rajapalayam

Chatram Charities 1976 T.L.N.J. 21.

That decision appears to have been relied on, on behalf of the third defendant. The learned Subordinate Judge held that the application was not

filed within time and that the application to excuse the delay could not be accepted. It is this order that is sought to be challenged by the third

defendant in the present revision petition.

Mr. Ramalingam, learned Counsel for the revision petitioner, contended that there was a bona fide mistake on the part of the Advocate who

advised the third defendant and that in such a case, the delay should have been excused. For the respondents, Mr. A. Shanmugavel contended (i)

that the provisions of the Limitation Act, did not apply to this case; and (ii) that, in any event, the delay has not been properly explained in the

affidavit.

With reference to the first submission, learned Counsel for the respondents referred me to the provisions of Section 21 of Tamil Nadu Debt

Relief Act (XL of 1979). That section runs as follows:

Where, in execution of any decree, any immovable property in which a debtor entitled to the benefits of the Act had an in rest, had been sold or

foreclosed on or after the 14th day of July, 1978, then, notwithstanding anything contained in the Limitation Act (XXXVI of 1963), or in the CPC

(V. of 1908) and notwithstanding that the sale had been confirmed, any judgment-debtor claiming to be entitled to the benefits of this Act, may

apply to the Court within ninety days from the date of the publication of this Act in the Tamil Nadu Government Gazette, to set aside the sale and

the Court should, if it is satisfied that the applicant was a debtor entitled to the benefits of this Act, order the sale to be set aside and thereupon, the

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

According to him, the expression, ""notwithstanding anything contained in the Limitation Act, 1963,"" rules out of consideration the entire Limitation

Act, including Section 5 thereof. If so, in his submission, we are left only with Section 21 of the Act, which provides only a period of ninety days

and, so long as this application was not filed within that period, there is no question of the sale being set aside. For the petitioner, Mr. Ramalingam

submitted that the relevant words, namely, ""notwithstanding anything contained in the Limitation Act, 1963"" were introduced into the Act only to

see that there was no conflict between Section 21 of the Act and Article 127 of the Limitation Act. Article 127 of the Limitation Act, provides for

a period of sixty days from the date of the sale, for setting aside the sale in execution of a decree, including any such application by a judgment-

debtor. As a different period was provided for in Section 21, the submission is that the words, ""notwithstanding any contained in the Limitation

Act, 1963"", were introduced so as to get Article 127 out of the way.

I consider there is substance in this submission. The Legislature did not completely rule out of consideration the entire Limitation Act. The words

have to be understood only in the context of avoiding a conflict between the Limitation Act and Section 21 of the Tamil Nadu Debt Relief Act XL

of 1979. Further, there is also the expression, ""notwithstanding anything contained in the Code of Civil Procedure, 1908"", occurring in this very

section. It does not mean that the whole CPC is to be excluded, in which event, the executing Court which functions under the Code will have no

part to play. For the above reasons, I do not find it possible to accept the submission of Mr. Shanmugavel that the entire Limitation Act including

Section 5 is barred from consideration in the present case.

As regards the second point of explanation regarding the delay, the relevant paragraph in the affidavit has already been extracted above. The

contention of Mr. Shanmugavel is that the petitioner had gone to the Advocate only on 14th September, 1979, and that she could not have had

any inkling of the Advocate''s impression prior to that date. As 14th September, 1979, itself is outside the period of ninety days, there is no

question of any condonation of delay because the entire delay is due to the laches on the part of the petitioner herself. For the petitioner, the

submission was that the Advocate who drafted the affidavit had himself argued in the Court below that there was a mistake on his part. If really an

affidavit from him was called for, or his evidence was to be recorded, he would have been in a position to explain the matter.

It is possible that there was some misapprehension on the part of the Advocate that it was enough for him to explain the delay when he was

arguing the case. It is not clear as to when the party approached him and when he gave the impression that the application had to be filed by 15th

October, 1979. As there is some likelihood of some mistake as to what the parties had to do, I think it proper to give the petitioner an opportunity

to tender appropriate evidence in explanation of the delay in the Court below. The, petition is accordingly allowed and the matter, remanded to the

executing Court for taking evidence on the, question of delay and dispose of the execution application in accordance with law. There will be no

order as to costs.