Saranga Padayachi vs Vairakannu Chettiar

N.S. Ramaswami, J.—The petitioner before me filed an application u/s 20 of Act V of 1938 as early as 1973 and obtained an order of stay

of execution by the order dated 18th June, 1973. He did not care to file an application u/s 19 within sixty days of the said order, as contemplated

under the proviso to Section 20. Later i.e., on 11th April, 1974 the application out of which the present civil miscellaneous appeal arises came to

be filed u/s 19 for scaling down the debt. This is clearly barred by limitation.

It is contended on behalf of the appellant-judgment-debtor that Section 19 itself does not provide for any period of limitation, that an application

under that section can be filed at any time and that, therefore, the proviso to Section 20 should not be invoked in support of the contention that the

application u/s 19 is barred by limitation. I am unable to agree with that contention.

The proviso to Section 20 clearly says that if an application u/s 19 had already not been filed and if such an application is not filed even within

sixty days of the order of stay, then the decree shall be executed as it stands, (without being scaled down.) In Kumaraswami Pillai and Another Vs.

Thiruvengadatha Aiyangar, , a Division Bench of this Court had to consider whether the said proviso to Section 20 is a condition precedent which

means that beyond the period of sixty days provided therein no application u/s 19 can be entertained, any delay cannot be excused, or whether it

prescribes only a period of limitation in which event Section 5 of the Limitation Act can be invoked and the delay can be excused for proper and

adequate reasons. The Division Bench held that the proviso prescribes only a period of limitation.

The contention on behalf of the judgment-debtor is that in spite of the above said proviso to Section 20, there is no period m limitation at all in

respect of an application u/s 19. It is true that if the judgment-debtor has not invoked Section 20 and obtained stay of execution, he can always

approach the Court which passed the decree (as long as the decree has not been satisfied) for scaling down the debt, if he is entitled to such

scaling down on merits. But once he invokes the jurisdiction of the Court u/s 20 and obtains stay of execution, then undoubtedly a period of

limitation is prescribed by the proviso to that Section which specifically says that unless an application u/s 19 (if it had not been already filed) is

fifed within sixty days of the order of stay the decree shall be executed as it stands.

The learned Counsel for the judgment debtor referred to my decision in R. Dharmarajan Vs. Nagalinga Kandiar and Another, , and that

rendered by Justice Mohan, reported in Krishnamurthi Iyer Vs. Sethurama Iyer and Another, , in the course of his arguments. But those cases

were concerned with the question whether if a Court-sale had taken place after the commencement of the amendment Act (VIII of 1973), the

judgment-debtor can invoke Section 23(c) and pray for setting aside the same. It was held that the judgment-debtor having had enough

opportunity to file an application u/s 19 (before the Court-sale takes place) in respect of sales which take place after the publication of Act VIII of

1973, Section 23(c) cannot be invoked. Those decisions have nothing to do with the question of limitation that arises in the present case.

The conclusion of the Court below that the present application u/s 19 is barred by limitation is correct. The appeal fails and the same is

dismissed. However, there is no order as to costs.