G. Kaliyaperumal Vs. V. Annamalai Mudaliar - Court Judgment

Excerpt:
- - 3. a reading of section 20 of the act clearly discloses that stay under the said section is a must.ordera.r. lakshmanan, j.1. this civil miscellaneous second appeal is against the order of the learned additional subordinate judge, cuddalore, in c.m.a. no. 47 of 1991, dated 31.1.1992, which appeal was filed against the order dated 11.4.1991 in unnumbered execution application in o.s. no. 507 of 1973 by the learned district munsif, cuddalore, rejecting the execution application filed by the appellant herein under section 20 of act iv of 1938, as amended by act viii of 1973.2. section 20 of act iv of 1938, which is the relevant section for the purpose of deciding the dispute as follows:20. stay of execution proceeding every court executing a decree: a decree passed against a person entitled to the benefits of the act shall on application stay the proceedings until the court which passed the decree has passed orders on an application made under section 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 section 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.3. a reading of section 20 of the act clearly discloses that stay under the said section is a must. the word used in the section is 'shall'. hence, when an application is made by a judgment-debtor that he is an agriculturist coming under the definition of the act and that a decree has been passed against him in respect of a debt which arose prior to 1.3.1972 and that the said decree is not in accordance with law as it has not taken note of the fact that the judgment-debtor is an agriculturist debtor entitled to the benefits of scalling down under the act, then the only thing that can be done by a court which passed the decree is to stay the decree. it has nothing more to do or probe into the truth of what the judgment-debtor says. that has to be done only when a judgment-debtor files a petition under section 19 of the act before the court which is to execute the decree. section 20 of the act also, enjoins that within 60 days of obtaining the order for stay, the judgment-debtor shall apply to the executing court under section 19 at the risk of the stay being vacated.4. in this state of law, it is rather unfortunate that the learned district munsif rejected the application without even numbering the same with a laconic order stating that he does not find any reason to stay the proceedings. i need hardly to state that orders of this kind have been deprecated in several proceedings by the apex court and also by this court. it is fundamental that whatever the order, it must contain the reasons therefor so as to enable the court in appeal to understand why the application has been rejected and the order is tenable.5. against this order, when an appeal was filed in the sub court, cuddalore, in c.m.a. no. 47 of 1991, the learned sub judge dealt with the matter foreign to the scope of the questions involved in the appeal before him. the learned sub judge has dealt with section 47, c.p.c., as to how it was prior to 1976 amending act and how it has come to after the amending act, etc. the learned sub judge should have seen that act iv of 1938 is a self contained enactment providing for appeals being laid under the orders passed under the act. there is no need for invoking any statutory provision under the code of civil procedure, namely order 43, because section 25-a of act iv of 1938 as amended by act viii of 1973 itself provides for appeal. it is, therefore, idle to discover any provision under order 43, c.p.c. for an appeal being laid, as no such provisions can possibly be found in that act when already there is a provision in the act itself for appeals. therefore, i am constrained to state that the courts below have not bestowed any thought over the matter or satisfactorily dealt with the matter by taking into consideration appropriate and relevant provisions of law in regard thereto.6. it is unfortunate that a debtor should knock about from one court to another and also incur needless expenditure. it has also to be taken note of that a great delay indetermination of rights take place when the courts do not take pains to deal with a matter in accordance with relevant provisions of statute. in the instant case, in particular, this delay could have been avoided.7. in the circumstances, the civil miscellaneous second appeal is allowed and the matter is remitted back to the court which passed the decree to determine the application filed by the appellant, before it under section 20 of act iv of 1938 in accordance with law, within two months from the date of receipt of a copy of this order after hearing both parties. there will be no order as to costs.

Judgment:
ORDER

A.R. Lakshmanan, J.

1. This civil miscellaneous second appeal is against the order of the learned Additional Subordinate Judge, Cuddalore, in C.M.A. No. 47 of 1991, dated 31.1.1992, which appeal was filed against the order dated 11.4.1991 in unnumbered execution application in O.S. No. 507 of 1973 by the learned District Munsif, Cuddalore, rejecting the execution application filed by the appellant herein under Section 20 of Act IV of 1938, as amended by Act VIII of 1973.

2. Section 20 of Act IV of 1938, which is the relevant section for the purpose of deciding the dispute as follows:

20. Stay of execution proceeding every court executing a decree: A decree passed against a person entitled to the benefits of the Act shall on application stay the proceedings until the Court which passed the decree has passed orders on an application made under Section 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 Section 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.

3. A reading of Section 20 of the Act clearly discloses that stay under the said section is a must. The word used in the section is 'shall'. Hence, when an application is made by a judgment-debtor that he is an agriculturist coming under the definition of the Act and that a decree has been passed against him in respect of a debt which arose prior to 1.3.1972 and that the said decree is not in accordance with law as it has not taken note of the fact that the judgment-debtor is an agriculturist debtor entitled to the benefits of scalling down under the Act, then the only thing that can be done by a court which passed the decree is to stay the decree. It has nothing more to do or probe into the truth of what the judgment-debtor says. That has to be done only when a judgment-debtor files a petition under Section 19 of the Act before the court which is to execute the decree. Section 20 of the Act also, enjoins that within 60 days of obtaining the order for stay, the judgment-debtor shall apply to the executing court under Section 19 at the risk of the stay being vacated.

4. In this state of law, it is rather unfortunate that the learned District Munsif rejected the application without even numbering the same with a laconic order stating that he does not find any reason to stay the proceedings. I need hardly to state that orders of this kind have been deprecated in several proceedings by the Apex Court and also by this Court. It is fundamental that whatever the order, it must contain the reasons therefor so as to enable the Court in appeal to understand why the application has been rejected and the order is tenable.

5. Against this order, when an appeal was filed in the Sub Court, Cuddalore, in C.M.A. No. 47 of 1991, the learned Sub Judge dealt with the matter foreign to the scope of the questions involved in the appeal before him. The learned Sub Judge has dealt with Section 47, C.P.C., as to how it was prior to 1976 Amending Act and how it has come to after the Amending Act, etc. The learned Sub Judge should have seen that Act IV of 1938 is a self contained enactment providing for appeals being laid under the Orders passed under the Act. There is no need for invoking any statutory provision under the Code of Civil Procedure, namely Order 43, because Section 25-A of Act IV of 1938 as amended by Act VIII of 1973 itself provides for appeal. It is, therefore, idle to discover any provision under Order 43, C.P.C. for an appeal being laid, as no such provisions can possibly be found in that Act when already there is a provision in the Act itself for appeals. Therefore, I am constrained to state that the courts below have not bestowed any thought over the matter or satisfactorily dealt with the matter by taking into consideration appropriate and relevant provisions of law in regard thereto.

6. It is unfortunate that a debtor should knock about from one court to another and also incur needless expenditure. It has also to be taken note of that a great delay indetermination of rights take place when the courts do not take pains to deal with a matter in accordance with relevant provisions of statute. In the instant case, in particular, this delay could have been avoided.

7. In the circumstances, the civil miscellaneous second appeal is allowed and the matter is remitted back to the court which passed the decree to determine the application filed by the appellant, before it under Section 20 of Act IV of 1938 in accordance with law, within two months from the date of receipt of a copy of this order after hearing both parties. There will be no order as to costs.