Govindaswami Padayachi vs Arumugha Padayachi

M.N. Chandurkar, C.J.—This revision petition arises out of proceedings for setting aside the sale of agricultural lands taken under Order

21, Rule 90, C.P.C. on the ground that the decretal debt having been scaled down in accordance with the provisions of Section 7 of Act IV of

1938, as modified by Act VIII of 1973, the sale is vitiated by irregularity.

The petitioner is a judgment debtor against whom a decree has been passed in O.S. No. 903 of 1970 on 18.12.1971, for a sum of Rs.

4,722.50. An execution petition filed originally on 4.2.1972, on the basis of which some items of agricultural property were attached was

dismissed on 23.1.1973, but the attachment was ordered to be continued. The decree holder then filed fresh execution proceedings being E.P.

No. 403 of 1973 on 13.2.1973. In execution proceedings, the attached properties were sold by auction for Rs. 2,436. Lots 7 to 12 were

purchased by the decree holder himself on 24.11.1973. Before the sale was held on 26.11.1973, the judgment debtor filed an application u/s 19

of Tamil Nadu Debt Relief Act, 1938, (hereinafter referred to as 1938 Act), on 22.11.1973, before the executing court.

There is no record of any petition having been filed u/s 20 of 1938 Act, but it is stated at the Bar that a petition was filed under the said section

on 20.11.1973. What is stated in Court is that the petition has been dismissed on the same day. The petition u/s 19 of the 1938 Act, however,

came to be dismissed. However, in appeal, the debt was scaled down to Rs. 4,435-25, by an order dated 6.11.1974, i.e. almost less than an year

after the properties were already sold in execution proceedings.

Relying upon the fact that the decretal debt has been scaled down, a petition under Order 21, Rule 90, C.P.C. to set aside the sale held on

26.11.1973 in respect of lots 7 to 12 was filed on the ground that the sale was vitiated by a material irregularity inasmuch as there was excessive

execution as the execution was sought for an amount larger than what the judgment debtor was liable for having regard to the scaling down of the

decretal debt. The executing Court set aside the sale on the ground that the decree holder should file an amended execution petition. The

amendment referred to was obviously in respect of the amount of the decretal debt.

The decree holder filed an appeal against that order. The District Judge South Arcot at Cuddalore, referred to the concession made before him

that the judgment debtor was not pressing the ground that the properties were sold for a very low price and that there had not been proper service

of notices. He negatived the ground that there was no proclamation of sale and found that, in fact there was a proper proclamation. The learned

District Judge then took the view that having regard to the scaling down of the debt to Rs. 4,000, it would have been better for the decree holder

to amend Clause 7 of the execution petition by stating the scaled down debt and that the failure to do so did not amount to a material irregularity

because even after lots 7 to 12 were sold for Rs. 2,436 there was still a balance of Rs. 2,000. Further, the learned Judge recorded a finding that

since there was still balance due to the decree holder, the failure on the part of the decree holder, to mention the original decretal amount in column

7 of the execution petition had not resulted in any substantial injury to the judgment debtor. He, therefore, held that the sale was not liable to be set

aside. The appeal was accordingly allowed and the sale of lots 7 to 12 was confirmed. This order is challenged by the judgment debtor in this

revision petition.

The learned Counsel appearing on behalf of the judgment debtor, has argued on the authority of a Full Bench decision of this Court in Bangaru

Chettiar v. San Basha Sahib 89 L.W. 310, that in the instant case, the scaling down of the debt having taken place after the date of the sale, he

could not have raised any objection to the execution proceedings when the properties were sold on 26.11.1973. The learned Counsel argued that

in view of the decision of the Full Bench referred to above, the petitioner was entitled to the benefit of 1938 Act and if the auction sale was for an

amount larger than what was actually due, having regard to the order of scaling down the debts it was obvious that the decree holder had brought

the property to sale for a larger amount which was clearly illegal. The learned Counsel contended that in allowing the sale to be confirmed on

execution proceedings initiated for recovery of an amount larger than what the judgment, debtor was liable to pay by virtue of the order u/s 19, the

execution proceedings were in violation of the provisions of Section 7 of the 1938 Act, and consequently, the sale was liable to be set aside.

The facts in this case are not in dispute and the only question is whether for the purpose of Order 21, Rule 90 C.P.C., there can be said to have

occurred an irregularity which vitiates the sale by virtue of the fact that subsequent to the auction sale, there was scaling down of the decretal debt

and thereby reduction of the judgment debtor''s liability. Order 21, Rule 90, C.P.C. reads as follows:

(1) Where any immovable property has been sold in execution of a decree, the decree holder or the purchaser or any other person entitled to

share in a ratable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale, on the ground of

material irregularity or fraud in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied

that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the

date on which the proclamation sale was drawn up.

Explanation-The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this

rule.

Under Sub-rule (1) of Rule 90, Order 21, C.P.C. undoubtedly, the judgment debtor was entitled to apply to, the court to set aside the sale on the

ground of material irregularity or fraud in publishing or conducting it. However, under Sub-rule (2) thereof, it is expressly provided that unless the

Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud, the sale shall not be set aside on the

ground of irregularity or fraud in publishing or conducting the sale. For the purposes of Order 21, Rule 90, C.P.C., therefore, it is not enough to

merely show that there has been any irregularity but it has to be further proved that the applicant has sustained substantial injury by reason of such

irregularity. Unless both these ingredients are therefore established, the court cannot exercise its power of setting aside the sale under Order 21,

Rule 90, C.P.C.

When we come to the provisions of 1938 Act, we are concerned with the provisions of Sections 19 and 20 thereof. The relevant part of

Section 19 is Sub-section (1) thereof which reads as follows

(1) Where before the publication of the Tamil Nadu Agriculturists Relief (Amendment) Act, 1972, in the Tamil Nadu Government Gazette, a court

has passed a decree for the repayment of a debt it shall, on the application of any judgment debtor who is an agriculturist or in respect of Hindu

joint family debt, on the application of any member of the family whether or not he is the judgment debtor or on the application of the decree

holder apply the provisions of this Act to such a deeree and shall notwithstanding anything contained in the Code of Civil Procedure, 1908, amend

the decree accordingly or enter satisfaction, as the case may be;

Provided that all payments made or amounts recovered whether before or after the publication of the Tamil Nadu Agriculturists Relief

(Amendment) Act, 1972 in the Tamil Nadu Government Gazette in respect of any such decree shall first be applied in payment of all costs as

originally decreed to the creditor.

Section 19 applied to a case where a court has passed a decree for the repayment of a debt before the a publication of the Tamil Nadu

Agriculturists Relief (Amendment) Act, 1972, which is Act 8 of 1973, which came into force on 24.1.1973. The decree in the instant case having

been passed on 18.12.1971, is, therefore, covered by Section 19. In the case of such a decree, there is a statutory obligation on the court to

amend the decree having regard to the provisions of 1938 Act. This can be done either on the application of the judgment debtor or on the

application of the decree holder, notwithstanding any provision in the Code of Civil Procedure. The Proviso requires that in case there were

payments made or amounts recovered before Act 8 of 1973, came into force, then such payments shall be applied in payment of all costs and

originally decreed to the creditor. Section 20 reads as follows

Stay of execution proceedings-Every Court executing a decree passed against a person entitled to the benefits of the Act shall on application stay

the proceeding until the court which passed the decree had passed orders on an application made u/s 19.

Provided that, where within 60 days after the application for stay has 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 contrary.

Explanation-The expression ''the court which passed the decree'' shall have the same meaning as in the Code of Civil Procedure, 1908 (V of

1908).

The substantive part of Section 20 makes it mandatory on the part of the executing court to stay the execution proceedings on an application being

made, until the court which passed the decree has passed orders on an application u/s 19. In a given case, the court which passed the decree and

the Court which executed decree may be the same. The Proviso to Section 20, however, seems to contemplate that in a given case, an application

u/s 20 may be made without making an application u/s 19 to the Court which passed the decree but in such a case if the application u/s 19 has not

been made within two days or where an application has been rejected, the decree shall be executed as it stands notwithstanding anything contained

in the Act to the contrary.

In so far as the present case is concerned, admittedly there was never granted any stay of execution proceedings as contemplated by Section

If the statement made at the Bar is accepted, the application for stay u/s 20, was made prior to the application u/s 19. Having regard to the

express provisions in Section 20, which will apply to either of the two cases, namely, where an application is made u/s 19 and along with that an

application is made u/s 20 or an application u/s 20 is made simplicitor without making an application u/s 19 it is obvious that merely making an

application u/s 19 of the 1938 Act does not by itself operate to stay any execution proceedings. As a matter of fact, the proviso to Section 20

seems to contemplate that if within 60 days of getting an order of stay u/s 20, an application u/s 19 is not made, the decree shall be executed as it

stands. It is true that the vacating of the order of stay u/s 20 if the application u/s 19 is not made within a period of 60 days as required by the

Proviso does not debar the judgment debtor from making an application u/s 19 beyond the period of 60 days, but it is obvious that it was in the

contemplation of the statute that unless the execution proceedings were stayed u/s 20, the decree will be executed as it is, notwithstanding anything

contained in this Act to the contrary. Therefore, the provision u/s 20 clearly indicates that in a case where there is no order of stay of execution

proceedings on the ground that an application was made u/s 19, there is no statutory bar whatsoever against proceedings with the execution

proceedings. The non substance clause at the end of the Proviso to Section 20 also indicates that the execution proceedings can go on

notwithstanding the proceedings for reduction of the liability of the debtor. It is necessary to refer to Section 7 of the Act because heavy reliance

has been placed by the learned Counsel appearing for judgment debtor on the second part of Section 7 in support of the contention that the

auction sale in execution proceedings purporting to be for the recovery of an amount larger than the debt determined after it has been scaled down

will be in express violation of the provisions of Section 7 reads as follows -

...Debts payable by agriculturists to be scaled down-Notwithstanding any law, custom contract of decree of court to the contrary, all debts

payable by an agriculturist on the 1st March, 1972 shall be scaled down in accordance with the provisions of this Chapter.

No sum on excess of the amount as scaled down shall be recoverable from him or from any land or interest in land belonging to him; nor shall his

other property be liable to be attached and sold or proceeded against in any manner in the execution of any decree against him in so far as such

decree is for an amount in excess of the sum as scaled down under this chapter.

Section 7 which is based on the general principle, which is well recognised in Debt Relief Statutes creates an obligation for scaling down the debts

payable by an agriculturist on 1st March, 1972 in accordance with the provisions of Chapter II of the 1938 Act. Having provided in the first part

of Section 7 that a debt shall be scaled down, the second part of Section 7 is merely a consequential corollary to the effect of sealing down the

debt. The second part of Section 7 is in two parts. The first part provides that any amount in excess of the scaled down amount shall not be

recoverable from the debtor or from any land or interest in land belonging to him. The emphasis in the first part is that the excess amount is made

irrecoverable from either the debtor personally or from any land or interest in land belonging to him. The second part is specifically intended to

provide that no other property of the debtor shall be liable to be attached and sold or proceeded against in any manner in the execution of any

decree against him in so far as such decree is for an amount in excess of the sum as scaled down under this Chapter. The specific object of the

second part of Section 7, therefore, is to insulate the judgment debtor, his lands or his interest in land as well as all his other property from being

brought to sale for the recovery of any amount in excess of the scaled down debt. The further emphasis is that no amount higher than the amount

determined as being payable by virtue of scaling down shall be recovered. The object of the second part of Section 7, therefore, is very clear that

it prohibits excess recovery and restricts the recovery only to the extent of the debt which has been scaled down. It is really the substantiative

provision which determines only the extent of the liability, beyond which recovery cannot be made. The provisions of the Act have to be read as a

whole and we cannot ignore the provisions in Section 20. In a case where there is no order of stay u/s 20 of the 1938 Act, and by the latter part of

the Proviso, execution proceedings are expressly permitted to go on notwithstanding anything to the contrary, the provision of Section 7 cannot

affect the execution proceedings except to the limited extent that in the process of execution, the amount recovered by the sale of the judgment

debtor''s property cannot be in excess of the scaled down debt. The limited extent of Section 7, therefore, being to restrict the amount

recoverable, it cannot create any infirmity in the execution proceedings which were perfectly legal and permissible having regard to the provisions

of Civil Procedure Code, the only bar being contemplated by Section 20 not being there in the instant case. It is, therefore, difficult to accept the

argument that by allowing the execution proceedings to go on, though they were expressly permissible notwithstanding any other provisions in the

Act when there is no order of stay. u/s 30, the right of the judgment debtor u/s 19 would stand defeated.

The argument of the learned Counsel that the execution proceedings had an infirmity which has been created by the fact that subsequent to the

sale the debt has been scaled down, appears to be wholly unacceptable. Proceedings in execution are not regulated by the provisions of 1938 Act,

except to the limited extent by the provisions in Section 20 or the provisions in Section 19, which are restricted only to determine the extent of the

recoverable amount and by corollary to determine the irrecoverable amount. Whether there is any irregularity or not in publishing or conducting the

sale, will have to be determined expressly with reference to the provisions of the Civil Procedure Code.

As already pointed out, the provisions of 1938 Act do not impinge at all on the execution process except to the limited extent indicated above.

At the most, in a case where by virtue of an execution proceeding the amount recovered by the decree holder happens to be more than the scaled

down liability, the remedy appears to be by way of restitution and not by way of setting aside the sale which was perfectly permissible having

regard to the nonobstante clause at the end of the Proviso to Section 20.

Since great reliance had been placed on the decision of the Full Bench in Bangani Chettiar''s case, 89 L.W.310, referred to above, it becomes

necessary to refer to it though on going through the decision, it appears to me that it is clearly distinguishable on facts, and so far as the present

case is concerned, it does not seem to be much relevant except to the extent that it decides that even though the judgment debtor does not apply

within 60 days from the date of obtaining an order u/s 20, his right u/s 19 is not lost and he can still make an application u/s 19. The Full Bench has

held in Bangani Chettiar''s case, 89 L.W. 310, that the proviso to Section 20 cannot be construed as providing period of limitation for an

application u/s 19. It is also important to point out that while construing the Proviso even the Full Bench has taken the view that 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. In paragraph 22 the Full Bench has observed as follows-

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 its 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 above 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 application of the sale proceeds....

The view which I have taken earlier appears to be perfectly in consonance with the decision of the Full Bench. The observations quoted above

clearly indicate that if there is no stay as contemplated by Section 20, the decree can be executed as it is. The judgment debtor may still apply u/s

19, and if the judgment debtor succeeds u/s 19, he can work out his rights at the time of the application of the sale proceeds. As a matter of fact,

the observations that the rights following an order u/s 19 can be worked out at the time of the application of the scale proceeds clearly indicates

that the sale held would be perfectly a good sale and if Section 7 has been given effect to in the application u/s 19, then at the time when the sale

proceeds are sought to be appropriated, the judgment debtor will be entitled to claim a refund of the amount in excess of the liability which has

been ultimately determined by application of the provisions of the 1938 Act.

It has to be remembered that the limited question which fell for consideration before the Full Bench in Bangaru Chettiar''s case, 89 L.W. 310,

case referred to above was whether Section 23-C which was brought in by way of amendment in the 1938 Act, by Amending Act 8 of 1973, with

effect from 24th January, 1973, was applicable to an auction sale which took place after 24-1-1973. Holding that Section 23-C could not be

invoked in respect of sales which had taken place after the publication of Act 8 of 1973, the Full Bench took the view that in respect of sales

which had taken place after 24-1-1973, the Act gave sufficient remedy by way of Section 19 and Section 20 to see that the sale does not take

place before the debt is scaled down. In paragraph 17 of the above said decision, the Full Bench observed as follows referring to auction sales

which had taken place after the publication of the Amending Act 8 of 1973-

... In respect of that proceeding 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 getting 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....

Therefore, since the question which arises in the present revision petition is not identical to the question which arose before the Full Bench, it is

difficult to see how the ratio of the decision of the Full Bench referred to above would be invoked by the judgment debtor in this case.

It is true that in the last paragraph of the judgment, the Full Bench after discussing the appeal filed by the judgment debtor observed that ''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''.

This observation, however, cannot be construed to mean that an execution sale, which had taken place and was expressly authorised by the 1938

Act, to be held because there was no order of stay as contemplated by Section 20, automatically becomes infirm and is liable to be set aside.

Reading the judgment as a whole, it appears to me that the only possible result of scaling down of the debt after the sale has already been held is

that the benefit of scaling down can be claimed only at the stage of the application of sale proceeds.

It is, therefore, clear that in respect of a sale which had taken place because of the absence of an order of stay u/s 20 of the Act, no irregularity

is created by the subsequent event of scaling down the debt.

Some reference was made to the decision of Venkataswami, J. in Subramaniam v. Thavasinandam 100 L.W. 1052, and it was contended that

the decision of the Full Bench referred to above had been followed by the learned Judge. Undoubtedly, in Subramaniam''s case, 100 L.W. 1052,

Venkataswami, J. has referred to the decision in Bangaru Chettiar''s case. But a bare reading of that decision will show that the ratio of the

decision hi Bangaru Chettiar''s case, 89 L.W.310, was invoked for the limited purpose of arriving at the view that the confirmation of sale is a part

of the execution proceedings and it was not merely an administrative act. If that was the limited purpose for which Venkataswami, J. relied upon

the decision in Bangaru Chettiar''s case, 89 L.W. 310, the judgment debtor cannot draw any assistance from that decision.

Two decisions of this Court were cited by the learned Counsel for the judgment debtor in support of the proposition that the scaling down of

the debt in accordance with the provisions of the 1938 Act was the obligation of the decree holder himself.

Undoubtedly, the decision in P.R. Govindaswami Naicker Vs. C. Javanmull Sowcar and Another, , and another decision in respect of the

same parties reported at page 920 of the same volume held that it was the duty of the creditor to scale down the debts. Assuming that to be

correct position in law, we must appreciate that in both these decisions, the only question which fell before the learned Judges was whether a suit,

for an injunction lay against the mortgagee when the mortgagee was about to recover the mortgage debt by exercising his power of sale u/s 69 of

the Transfer of Property Act, in respect of a debt owed by a debtor which was covered by the 1938 Act. In both these cases, it was held by this

Court that the suit was competent and that as the sale was imminent, the court might properly grant an interim injunction. With respect to the

learned Counsel for the judgment debtor, both these decisions do not at all appear to have any relevance to the controversy in this revision petition.

Some reliance was placed by the learned Counsel for the judgment debtor on the observations of the Supreme Court in Lal Bhagwant Singh

Vs. Rai Sahib Lala Sri Kishen Das, . That was a case in which the Supreme Court was dealing with the provisions of Sections 4,6 and 7 of the

U.P. Encumbered Estates Act, as amended in 1939. The Supreme Court held that the provisions of the Amending Act have no retrospective

operation and, therefore, where the court allows the application of the landlord made under the Amending Act, for amendment pf his original

application u/s 4, the proceedings which have been quashed, and passes an order u/s 6 that order has not the effect of invalidating the sale which

was held when there was no pending application u/s 4 as a result of the quashing of the proceedings. Under the U.P. Act, a landlord-debtor whose

property was encumbered could apply to the Court for the administration of his estate for liquidation of his debts. The landlord had made

applications under the U.P. Agriculturalists Act and the U.P. Encumbered Estates Act. The first one was Act 27 of 1934. Under that Act, the

judgment debtor became entitled to the amendment of the decree by reduction of interest and for payment of the decretal sum in instalments. The

judgment debtor made applications under both the Acts. Under the U.P. Agriculturists Relief Act, he prayed for the scaling down of the amount of

the decree and for instalments and in the application u/s 4 of the Encumbered Estates Act, he had asked for liquidation of his debts by the civil

Judge. The Civil Judge altered the decretaf amount of Rs. 3,88,300-2-6-to Rs. 3,76,730-4-3 and directed the debt to be payable in 12 equal

annual instalments. The creditor was successful in getting this order set aside in a revision application filed in the Chief Court. The Judgment debtor

in proceedings under the Encumbered Estates Act initially obtained an order u/s 6 but that order was also ultimately set aside and the debtor''s

application u/s 4 was dismissed. The creditor revived the execution proceedings which were taken for execution of the compromise and called

upon the debtor to execute a sale deed in respect of certain villages in his favour. On the failure of the judgment debtor to execute the sale deed,

the Court executed a sale deed in his favour. Ultimately, an appeal came to be filed before the Privy Council against the order by which the

amended decree was set aside. The Privy Council set aside the order of the Chief Court and the amended decree was restored giving liberty to the

judgment debtor to approach the Civil Court for such relief as he might be entitled to with reference to the recovery of possession of the property.

Restitution proceedings were taken by the Subordinate Judge.

That order was set aside by the Chief Court again and the restitution application was dismissed. On these facts, the Supreme Court held that the

order made could not affect the validity of the sale deed executed at a time when no application u/s 4 of the Encumbered Estates Act was pending.

It is really difficult to see how the above decision can be of any assistance. We are concerned with a very simple proposition as to whether the

subsequent scaling down of the debt subsequent to the auction sale can be considered as irregular which will vitiate the sale. There is no question

of restitution involved in this case because the auction sale had not been confirmed. As already pointed out by me, even on the decision of the Full

Bench in Bangaru Chettiar''s case, 89 L.W. 310, the only benefit which the judgment debtor can now get as a result of the order scaling down the

debt having been passed after the date of the auction sale is that the creditor will be entitled only to the amount equal to the debt that had been

scaled down.

The facts referred to by me will show that the property has been sold for a price which is much lesser than even the amount of the debt as

scaled down. The second condition which is required to be satisfied before an auction sale is set aside under Order 21, Rule 90, C.P.C. is that the

irregularity must have resulted in a substantial injury to the judgment debtor. By merely stating the original amount of the decree in the execution

application which was the correct amount then found due because the debt was not scaled down at all, firstly, there cannot be said to be any

irregularity at all and even assuming that an irregularity had been created by virtue of any subsequent event, that irregularity cannot be said to have

caused any injury much less substantial to the judgment debtor.

The learned Counsel appearing on behalf of the decree holder has invited my attention to a decision of Wadsworth J. in Sankara Sastri v.

Varaprasad 60 L.W. 307. In that case, while the proceedings for execution of a final decree were pending, the debtor had made an application u/s

19 of the 1938 Act, but that application was dismissed. The sale of the property in dispute took place on 9.1.1939. One item of property was sold

for Rs. 1900 and the other item for Rs. 2225. The decretal amount to be recovered was Rs. 41191-7-4. Both of them were purchased by the

decree holder himself. In a revision application filed by the judgment debtors against the rejection of the application u/s 19, there was no stay of

confirmation of sale. In the revision application, the judgment debtors were held to be agriculturists and the application u/s 19 was remitted to the

trial court. Ultimately, the decretal debt was scaled down to Rs. 1729-9-0 and Rs. 493 by way of costs with subsequent interest. On the date of

the sale, therefore, in view of the scaling down, the amount due was Rs. 2469. The judgment debtors claimed by way of restitution the cancellation

of the sale on payment by them of the amount of the decree as scaled down. Both the Courts rejected the prayer for cancellation of the sale but

held that the judgment debtors were entitled to a refund of the difference between the amount due on the decree as scaled down and the amount

realised by the sale.

An argument like the one which was advanced now in this Court by the learned Counsel for the judgment debtor was also advanced before

Wadsworth, J. The argument was that the sale for more than the scaled down amount offended against Section 7 of the 1938 Act and the further

argument was that the equitable way of dealing with the application for restitution was to set aside the sale, at any rate, of the second item, leaving

the judgment debtor to deposit the small amount which remained due under the revised decree after the sale of the first item. The learned Judge

took the view, with which I respectfully concur that Section 7 of the 1938 Act must be read in the light of the specific provisions of Section 19

relating to decrees; and unless and until the proper procedure had been taken to alter the decree, it is not open to the executing court to refuse to

execute the decree as it stands. With regard to the second contention, the learned Judge held that even after the first item was sold for Rs. 1900, a

balance of Rs. 569 would still be due under the decree even after taking into account the debt as scaled down and since this amount was secured

on the balance of the hypotheca, unless it was paid, the court had necessarily to complete the sale. On the figures found, the learned Judge held

that there was no equitable reason why the sale should be set aside.

Having considered the arguments of the learned Counsel of both sides at considerable length, it appears to me that the contention that the sale

should be set aside in view of the decretal debt having been scaled down subsequently is wholly without any substance.

The revision petition is accordingly dismissed with costs.