Chinnaswami Chetty vs Parvathiah Chetty

Wadsworth, J.—This case raises a question under Sections 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 u/s 20 of Act IV in August, 1939. He did

not follow up that stay order with an application u/s 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 u/s 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 9th September, 1940, i.e., more than a

year after the stay order. This application u/s 19 was opposed by the decree-holder and on 27th 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 u/s 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 u/s 20. The fact remains that on 27th November, 1940, notwithstanding the objection of the decree-

holder, the decree was amended u/s 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 u/s 19,, the only decree which could be executed was the amended decree. The executing

Court passed a considered order rejecting this contention on the 25th March, 1941. On the 17th 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.

A preliminary objection was taken to the revision petition on the ground that it is preferred not against the order of the 25th March overruling the

objections, but against the order of the 30th 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 25th March, 1941.

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 u/s 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.

Assuming that the proviso of Section 20 did not contemplate the present facts, it remains to be seen what is the effect of applying to the

undoubted facts the procedure laid down in Section 20. The lower Court has read the words ""shall be executed as it stands"" as having regard to

the condition of the decree, not at the time of execution, but at the time of the stay proceedings; that is to say, the lower Court reads these words

as if they were ""the decree shall be executed as it stood when the stay was ordered."" I doubt very much whether this is the correct grammatical

construction of the words. In plain English, the words ""shall be executed as it stands"" would, in my opinion, mean, ""shall be executed as it stands at

the time of execution"" and not as it stood at some anterior date. If the word ""stands"" were to relate back to some anterior date,, the past tense

ought to have been used. Moreover the construction placed upon these words in the lower Court involves the difficulty that the executing Court

would be required to ignore any amendment of the decree which might have taken place in the trial Court in the interval between the granting of the

stay and the execution of the decree, even if that amendment were an amendment passed under the Civil Procedure Code. It seems to me that the

view taken by the lower Court ignores the basic principle that the executing Court cannot go behind the decree as issued by the trial Court. If the

trial Court amends the decree while the execution petition is pending, the executing Court cannot, when the amendment has been brought to its

notice, proceed with the execution of the decree as it stood before the amendment. It is the trial Court and trial Court alone which can decide what

is precisely the decree which the executing Court has to execute.

On these considerations I am constrained to hold that the words ""the decree shall be executed as it stands"" have reference to the frame of the

decree at the time of the execution, having regard to any changes which it may have undergone in the trial Court, and not to the frame of the decree

as it stood at the time of the stay order. I am fortified in this conclusion by reference to what happened in the present case. The decree-holder had

notice of the application u/s 19 and he contested that application. On the strength of the decision in Kumaraswami Pillai and Another Vs.

Thiruvengadatha Aiyangar, . , he could presumbly have contended that the application was barred not having been filed within 60 days of the grant

of the stay u/s 20. Whether he did raise such an objection or not, we do not know. There is also a possibility that some contention may have been

taken based on Section 14 of the Limitation Act with reference to the proceedings alleged to have taken place before the Debt Conciliation Board.

That however is only a conjecture. We do know that the decree-holder objected to the amendment of the decree u/s 19 and that his objection was

overruled. In my opinion it is no longer open to him to urge before the executing Court that the decree to be executed is the decree as it stood

before the amendment. Even if the amendment was wrongly made, he is bound by it.

In this view I allow the revision petition and direct execution to proceed on the basis of the decree as amended. The decree-holder will pay the

costs of the revision petition.