Parameswara Menon vs Kotana Narayana Menon

Wadsworth, J.—The petitioner was a decree-holder in a Court of the Cochin State, who executed his decree by the sale of properties in British India. The judgment-debtor applied u/s 23 of Madras Act IV of 1938 to set aside that sale and the lower appellate Court has ordered it to be set aside. It seems to me that the order is wrong. Section 23 is available only to an agriculturist entitled to the benefits of the Act. This must mean that he is entitled to the benefits of the Act with reference to the particular matter and not generally. The judgment-debtor in question having got this sale set aside cannot apply for any benefit under the Act unless he can get the decree amended u/s 19. That cannot be done as the procedure u/s 19 can only be applied by the Court which passed the decree, that is, in this case by the foreign Court to which this Act has no application. It seems to me to follow that the judgment-debtor is not an agriculturist entitled to the benefits of the Act. I may point out that to hold otherwise would still leave it open to the decree-holder to execute his decree again and cause a fresh sale to be held, to which sale Section 23 would have no application. A further objection which was not taken in the lower appellate Court is that no appeal lay--vide S. Viswanatha Aiyar and Others Vs. Narayanaswami Aiyar and Another, . But in the view that I have taken on the merits, it is unnecessary to go into that objection.

The petition is allowed with costs throughout and the application u/s 23 of Act IV of 1938 is dismissed.