Rengaraj Naidu and Others vs Bakthavatsalam

P. Govindan Nair, C.J.—These appeals are directed against the orders refusing to stay the execution of the decree u/s 20 of Act IV of 1938. The decree in the case was passed in 1965. The appellants claim that they are entitled to have the decree scaled down u/s 19 of the said Act. The orders appealed against took the view that the decree for mesne profits with which decree we are concerned does not create a debt and relied on the decision of this Court in Mottai Meera alias Sheik Abdul Kadir Rowther Vs. Chinna Sheik Abdul Kadir Rowther and Others, . The applications were dismissed.

During the arguments before us various questions were discussed. It was contended that an executing Court when approached u/s 20 for stay must automatically grant the stay and the decision of this Court in Durairajan v. Mohammad Kuthoose (1974) 87 L.W. 877 was relied on. Our attention was also drawn fairly by the learned Counsel on behalf of the appellants to the decision of this Court in M.A. Rathinam Vs. Thangammal, , which has taken an opposite view. One of us sitting singly had occasion to consider the same question in Nachimuthu Chettiar v. Moorthammal (1976) T.L.N.J. 367 and the view taken therein was that stay can be granted u/s 20 on the Court being prima facie satisfied that the person, applying is entitled to the benefits of the Act.

Section 19 of the Act runs thus:

(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 a 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 decree 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.

(2) The provisions of Sub-section (1) shall also apply to cases where after 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 payable at such publication.

Section 20 is 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 u/s 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 u/s 19 or where an application has been so made and is rejected, the decree shall be executed as it stands, notwithstanding anything contained in this Act to the contrary.

Explanation : The expression ''the Court which passed the decree'' shall have the same meaning as in the Code of Civil Procedure, 1908.

In order that Section 20 may be attracted there must be a decree passed against a person entitled to the benefits of this Act. Only if this condition precedent is satisfied can any one claim the benefits of the said section. The Court must at least be satisfied that the person applying for stay u/s 20 is a person against whom a decree has been passed and that person is one entitled to the benefits of this Act.

The benefit claimed herein is a benefit to have the decree scaled down u/s 19 of the Act. Though "debt" as defined in Section 3(iii) of the Act mentions any liability in cash or kind, whether secured or unsecured, due from an agriculturist whether payable under a decree or order of a civil or revenue Court or otherwise, Section 19 introduces further restrictions in relation to the persons who can claim the benefits of that section. Section 19, it may be noticed, applies only to cases where a decree had been passed. That decree, under the section, must be one that has been passed before the publication of the Tamil Nadu Agriculturists Relief (Amendment) Act, 1972 in the Tamil Nadu Government Gazette. Further, the section insists that the decree must be for "the repayment of a debt". In this case, the decree is for mesne profits, as was mentioned earlier. This Court has held in Mottai Meera alias Sheik Abdul Kadir Rowther Vs. Chinna Sheik Abdul Kadir Rowther and Others, , that ordinarily the relation between co-owners when one of them is in possession of common funds is not that of creditor and debtor and hence the liability to pay the co-owners their share of the fund is not covered by Act IV of 1938 as it is not a debt within the meaning of the Act. We think that the principle of this decision must apply to the case of one co-owner of the property having to pay the co-owners the excess of the profits collected by the co-owner in possession of the property. In such cases there is no debtor-creditor relationship and the debt can come into existence only when the amount of the profit that, is prayed for is quantified and the decree for that amount is passed by the Court. The decree in this case being one such passed in a suit for partition, where the co-owners have been in possession of the property and there had been apparently excess receipt of profits by those against whom the decree had been passed, we are not able to hold that the decree in this case is one for repayment of a debt.

The appellants are, therefore, not entitled to the benefit of Section 19 and we think, therefore, that they are not entitled to apply u/s 20.

Natarajan, J., has expressed the view in the decision reported in Dorairajan v. Mohammad Kuthoose (1974) 87 L.W. 877, which has not been accepted by Varadarajan, J., in Rathinam v. Thangammal (1975) 2 M.L.J. 665, that a Court should automatically grant stay when approached u/s 20 without considering whether the person approaching a Court is a debtor or whether there was a debt as defined under the Act and that if the Court is satisfied that he is an agriculturist, there should automatically be a stay. The learned Judge has observed that if this view was not taken, anomalous consequence would follow and the possibility of different views being expressed by a "Court considering the question that arises u/s 20 and the Court that deals with an application u/s 19 has been referred to. It is, therefore, necessary to deal with this aspect in this batch of cases.

On reading Sections 19 and 20 it appears to us that the proper construction to be placed should be to insist on a prima facie satisfaction so far as Section 20 is concerned. In the nature of things, the enquiry u/s 20 has to be limited; it must be one of a summary nature because the question whether there should be stay or not, which should be of short duration, will have to be decided rather urgently. Any decision taken by adopting such a procedure cannot normally be considered as a final one. It, therefore, follows, that any conclusion reached by the executing Court dealing with an application for stay u/s 20 of the Act must be a tentative one and, therefore, based on prima faice satisfaction. This will of course be subject to Section 19 and the final decision by the Court which deals with the application. Construing in this manner, any decision, u/s 20 will be subject to the final decision u/s 19. This we think will be the correct interpretation that has to be placed. Varadarajan, J., has gone to the other extreme. His decision seems to indicate that a decision taken by the executing Court u/s 20 would be final. This can give rise to the anomaly pointed out by Natarajan, J., or it will result in the position that the Court dealing with Section 19 would be bound by the decision u/s 20. We do not think that such results should follow. We, therefore approve of the decision in Nachimuthu Chettiar v. Moorthammal (1976) T.L.N.J. 367.

We dismiss these appeals. We direct the parties to bear their respective costs.