Dorairajan vs Mohammed Kuthoose

Natarajan, J.—The judgment-debtor who could not persuade the executing court to stay the execution of the decree passed against him

under S. 20 of Act IV of 1938 is the appellant. The controversy in the appeal is virtually one centered around the scope of the discretion of the

executing court to refuse stay of execution proceedings when a judgment debtor claiming to be an agriculturist, files an application under S. 20 of

Act IV of 1938 and prays for stay. Sec. 20 of Act IV of 1938 read as follows:--

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 Sec. 19.

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 under Sec. 19 or where an application has been so made and is rejected, the decree shall be executed as it stands,

notwithstanding any thing contained in this Act to the contrary.

A reading of the section clearly shows that a mandatory discretion is given to the executing court to stay the execution of the decree whenever a

judgment-debtor files an application under Sec. 20 of the Act and represents that he has already filed or that he is contemplating filing an

application under S. 19 of the Act before the Court which passed the decree for scaling down the debt.

The learned counsel for the respondent contends that the executing court has to conduct a preliminary enquiry to find out whether prima facie the

applicant was an agriculturist as S. 20 uses the words ""a person entitled to the benefits of the Act."" He would further contend that in this case the

executing Court has held such an enquiry and reached the conclusion that the applicant was not prima facie an agriculturist. The argument that is

therefore advanced is, the order of the executing court refusing to stay the execution of the decree ought not to be interfered with. I am afraid, this

contention cannot be accepted or sustained. The whole scheme of the Act is to provide relief to agriculturists from the oppressive burden of their

debts. The remedy of scaling down of the debs is open and available to the judgment-debtor as long as the debt remains unpaid and it does not

matter whether he applies to the Court which passed the decree either forthwith or belatedly for scaling down the decree passed against him. The

rational and proper view to be taken of the provision contained in S. 20 of Act IV of 1938 should be that immediately an application is filed to the

executing Court for staying the execution of the decree the Court should bring execution proceedings to a temporary halt and should give the

judgment-debtor an opportunity to get redress before the Court which passed the decree If such a course is not followed anomalous

consequences and incongruous results would follow. If the executing Court were to hold an in dependent enquiry of its own to find out whether a

judgment debtor is prima facie entitled to the benefits of the Act and render an adverse finding against the judgment-debtor and refuse to stay the

operation of the decree the property of the judgment-debtor will be sold in auction. If thereafter the Court which passes the decree were to uphold

the contention of the judgment debtor and scale down the debt as prayed for by him it would then result in the entire execution sale being affected

by the subsequent amendment of the decree in favour of the judgment-debtor. Viewed in this perspective, there can be no doubt that the executing

Court has to necessarily stay the execution of the decree whenever an application is made before it by the judgment-debtor who has already filed

or who contemplates filing an application under S.19 of the Act IV of 1938.

I may only refer to the decision in Sambanda Chetty v. Muthu Chettiar AIR 1942 Mad. 398 where Horwill, J. has also expressed that the

application under S.19 of Act IV of 1938 can be filed at any stage and that the terms of S. 20 of the Act leave no discretion to the executing court

to reject a prayer for stay. The learned Judge has gone a step-further and held that even if the application for scaling down was made belatedly or

appeared to be not made in good faith, the hands of the execution court, were tied and the court had no option to refuse stay of the execution of

the decree till the judgment-debtor exercises his right to file an application under S.19 and have it adjudicated by the Court which passed the

decree.

The learned counsel for the respondent raises a further contention that an appeal against an order parsed under S.20 of Act IV of 1933 is not

maintainable. This contention is based upon a Bench decision of this court in Swaminatha Odayar Vs. Srinivasa Aiyar and Others, but that decision

has been overruled by a Full Bench of this Court in Desikachariar v. Ramachandra Reddiar (1951) 1 M.L.J. 23. In the result, the appeal succeeds

and the order of the learned Subordinate Judge is set aside. The interim stay granted by this Court will continue to be in force for a period of 6

days from the date of receipt of the records by the lower court. If no application under S.19 of Act IV of 1938 is filed by the judgment debtor

within that period the stay will stand vacated and the execution will proceed. No costs.