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2001 DIGILAW 1025 (MAD)

Masanamuthu Nadar v. Retnam Nadar

2001-09-06

PRABHA SRIDEVAN

body2001
Judgment : 1. The appellant is the decree holder and also the auction purchaser. The appellant filed O.S.No.767 of 1973 for recovery of amounts due on, a simple mortgage. The suit was decreed and the mortgaged property was brought to sale in Court auction. With, permission of the Court, the decree holder himself purchased the property. Thereafter the respondent herein filed an application before the Tahsildar to discharge the debt under the provisions of the Tamil Nadu Debt Relief Act 13 of 1980 (hereinafter referred to as the Act). The petition was dismissed. On appeal, the Revenue Divisional Officer held that the respondent is a debtor within the meaning of the Act. He also filed E.A.No.718 of 1991 before the Principal District Munsif, Nagercoil for redelivery of the property under Order 21, Rule 101 and Sections 47 and 151, C.P.C. Redelivery was ordered. Against that an appeal was filed which was dismissed and therefore, the present C.M.S.A. has been filed. 2. Mr. Srikumaran Nair, appearing, for the learned counsel for the appellant submitted that the application for redelivery is not maintainable. The application has been filed under Order 21, Rule 101, C.P.C. and the judgment debtor cannot file an application under Order 21, Rule 101, C.P.C. The Court below had dealt with the petition as one under Section 144, C.P.C. Section 144, C.P.C. will not apply to this case since there is no variation, modification or reversal of the decree in favour of the appellant and he also cannot invoke inherent power when his powers to order redelivery are circumscribed by the provisions of C.P.C. as well as the Debt Relief Act. He also submitted that the Executing Court cannot go beyond the decree. He relied on the following judgments: (1) Kuppa Sankara Sastri v. Kakumanu Varaprasad , 1947 (1) MLJ 369 ; (2) Maganti Venkataswami Naidu v. Annapareddi Nagireddi alias Mutyalu Reddi , 1946 (l) MLJ 5; (3) A.R.Vinsithurthan Chettiar v. The Government of Tamil Nadu , 1982 (II) MLJ 437 ; (4) Perumal Gounder v. Chinna Kuppanna Gounder , 1981 TLNJ 236. 3. Mr. Sekar, learned counsel for the respondent on the other hand submitted that the question whether the respondent was a debtor as per Section 4 of the Act is the only point for consideration. 3. Mr. Sekar, learned counsel for the respondent on the other hand submitted that the question whether the respondent was a debtor as per Section 4 of the Act is the only point for consideration. He further submitted that when the Appellate Authority had found that the respondent was a debtor, no substantial question of law for consideration. He also referred to Section 4 of: the Act. As per Section 4 of the Act all suits and proceedings including execution proceedings abate upon the commencement of the Act and since in this case the sale had not been confirmed the proceedings must be held to have abated and therefore, the order was perfectly legal. He relied on the decision reported in Easwaramoorthy Velar v. Parvathammal , 2000 (1) CTC 412 that it was open to the debtor to either invoke the remedy by filing an application before the Tahsildar and to get release of the property or to move the Civil Court. 4. Certain dates are relevant for the purpose of this case. A preliminary decree for mortgage was passed on 26.4.1974, final decree on 22.9.1978 and execution petition was filed in 1979. The sale was held on 13.3.80 and the full decree amount was set off. The Act came into force on 19.4.80; the sale was confirmed on 16.6.80. The question whether redelivery of the property was maintainable is the substantial question that arises in the second appeal. It is needless to say that Section 144, CPC will not appl y to. this case because restitution can be ordered only where and in so far as a decree is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose. In this case, it cannot be said that the decree was varied or reversed. Both the Courts ordered the application on the ground that the Tahsildar and the RDO had held that the respondent was a “debtor” and therefore, all proceedings abate especially because the sale had not been confirmed. The Appellate Authority had totally accepted the RDO’s order which was marked as Ex.PI and had arrived at the conclusion that the respondent was a “debtor”. The parties had been examined. The Appellate Court does not appear to have considered independently whether the respondent is entitled to the relief under the Act. The Appellate Authority had totally accepted the RDO’s order which was marked as Ex.PI and had arrived at the conclusion that the respondent was a “debtor”. The parties had been examined. The Appellate Court does not appear to have considered independently whether the respondent is entitled to the relief under the Act. Both the Courts have been satisfied by totally accepting the finding of the Appellate Authority. 5. The question as to whether the respondent would be entitled to file an application for redelivery under Order 21, Rule 101, CPC or under Sections 47 and 151, CPC is subject to the provisions of the respondent’s right under the Act. The respondent claims its protection and therefore, the relief granted shall also be in accordance with the said Act. The decision reported in Kuppa Sankara Sastri v. Kakumanu Varaprasad , 1947 (I) MLJ 369 relates to scaling down of the Act under Act IV of 1938 and it was held that unless the decree had been amended by appropriate procedure, the Executing Court cannot refuse to execute the decree as it stands. From this, the counsel for the appellant would draw support for his case that the Executing Court went beyond the scope of the decree which remained unchallenged. 6. Maganti Venkataswami Naidu v. Annapareddi Nagireddi alias Mutyalu Reddi , 1946 (I) MLJ 5 again dealt with the right of the debtor under Act IV of 1938. A Division Bench of this Court held that the true criterion for restitution is to consider what would be the position as the Appellate Court’s decree has been passed by the Court of first instance and in that case on facts it was found that no legal or culpable reason are for setting aside the sale or ordering the restitution. This was relied on to show that in the absence of variation or modification of the decree obtained by the appellant, there can be no order of restitution. 7. This was relied on to show that in the absence of variation or modification of the decree obtained by the appellant, there can be no order of restitution. 7. Perumal Gounder v. Chinna Kuppanna Gounder , 1981 TLNJ 236 dealt with the scope and applicability of Sections 5 and 6 of the Act, and in that, the learned Judge held that in cases where either in a suit or in the course of execution proceedings, a suitor puts forth a claim that he is a “debtor”, the Civil Court must necessarily investigate and ascertain whether such a claim is made out or not, and, thereafter grant relief under Section 4 of the Act or refuse it and it was also held that for ripping open decrees already passed by the Civil Court, in keeping with the object of the legislation that even in such cases, the Courts should investigate the claim and grant appropriate relief. But as already stated the Civil Court while granting the relief under the Act does not appear to have investigated the claim of the respondent that he is a debtor. 8. But above all, there appears to be another serious hurdle to the maintainability of the application by the respondent. In A.R. Vinsithurthan Chettiar v. The Government of Tamil Nadu , 1982 (2) MLJ 437 a Division Bench of this Court held that merely because an application had been filed under Section 5 of the Act it was not possible to assume the existence of a debt when there was no subsisting debt as on the date of the application. In that case a suit was filed on a promissory note, which was decreed and the property of the judgment-debtor was attached arid brought to sale and purchased in Court auction by a third party, the sale proceeds were sufficient to fully discharge the decree debt due to the petitioner. All this took place before the Act came into force. Thereafter, the debtor filed a petition for a certificate of discharge which the authorities granted. Against this, a writ, was filed. The Division Bench held that even assuming that the fourth respondent is a debtor there was no subsisting debt on the date of application before the Tahsildar. So, there is no question of a non-existing debt being discharged by an order passed under the provisions of the Act. This applies to the present case. Against this, a writ, was filed. The Division Bench held that even assuming that the fourth respondent is a debtor there was no subsisting debt on the date of application before the Tahsildar. So, there is no question of a non-existing debt being discharged by an order passed under the provisions of the Act. This applies to the present case. The Act itself came into force only after the entire decree amount was set off as seen from the dates and events given above. The Explanation to Section 4 of the Act is as follows: ““Nothing in this section shall be construed as entitling any debtor for refund of any part of any debt repaid or interest paid already by him or recovered from him before the commencement of this Act.” 9. In this case, unlike the case decided by the Division Bench, the decree holder himself had purchased the suit property in Court auction. But that cannot take away from the fact, that his debt was discharged on 13.3.1980 as per the Court records. It is only the confirmation of sale that came thereafter. Even assuming that, execution proceedings abated because the sale was not confirmed before the commencement of the Act, the order directing redelivery can only be construed as a refund of the debt already recovered from the debtor before the commencement of the Act. The appellant by purchasing at the Court auction had set off the debt due to him and had deposited the balance money even before the Act came into force. Therefore, no debt existed on the date of the respondent’s claim to the Tahsildar. The debt having been repaid, redelivery of the property without making good to the decree holder, the amount for which full satisfaction was recorded, will amount to refund of the debt repaid. According to me in these circumstances, in view of the decision of the Division Bench of our High Court reported, in A.R.Vinsithurthan Chettiar v. The Government of Tamil Nadu , 1982 (II) MLJ 437 and the Explanation to Section 4 of the Act, the order of redelivery is not maintainable. 10. The substantial question of law is answered in favour of the appellant. The second appeal is allowed. No costs. The connected C.M.P. is closed.