SURIYA MALLAN Vs. ACHUTHA PAI
HIGH COURT OF KERALA
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(1.) JUDGMENT-debtor is the appellant in this second appeal. In execution of the decree his properties were sold in court auction on 10-6-1970. On 10-7-1970 an application to set aside the sale was filed. On 14-7-1970, Act 11 of 1970 came into force which enabled the judgment-debtor to get the sale set aside if the conditions laid down under S. 20 of the Act are satisfied. The application to set aside the sale was dismissed for default and on 6-11-1970 the sale was confirmed. On 14-1-1971 the appellant moved to set aside the sale on deposit of the first instalment as contemplated under S. 4 and 5 of the Act. This application was opposed by the decree-holder on the ground that the appellant is not entitled' to claim the benefit of S. 20 (8) as the sale had been confirmed on 6111970 and that he should have applied under S. 20 (1) of the act by satisfying the requirements under that sub-section. The executing court accepted the objection of the decree-holder and dismissed the application. That order was confirmed in appeal and hence this second appeal.
(2.) IT is not disputed that the appellant is an agriculturist. IT is also not disputed that on the date when the Act came into force, namely on 14 71970, the sale had not been confirmed. So, the appellant was entitled to get the sale set aside as per S. 20 (8) on deposit of one instalment as contemplated under S. 4 and 5 of the Act. This right is available to him until the last date for payment of the first instalment namely 14-1-1971. He did apply on 14-1-1971 to set aside the sale. The right conferred on him under S. 20 (8) is the right conferred on the date of the Act. The state of affairs on that day alone need be looked into for finding out whether he is entitled to the relief under S. 20 (8 ). The scheme of S. 20 also justifies only that conclusion. Sub-Ss. 12, and 3 of S. 20 provide for setting aside the sale which had been confirmed before the Act. In such cases different provisions are made to have the sale set aside. This right available to an agriculturist judgment-debtor cannot be taken away by the confirmation of the sale in the meanwhile, for, S. 3 (1) of the Act provides that applications for execution of a decree against an agriculturist pending at the commencement of the Act shall stand stayed for a period of six months. Confirmation of the sale is a step in execution and a judicial order is contemplated in the confirmation. That is prohibited by provisions of sub-s. 1 of S. 3. No doubt, the respondent's counsel contended that unless there is a motion for stay, the court is not bound to stay the proceedings for execution. In a case where there is a controversy as to whether the judgment-debtor is an agriculturist or not, possibly the court may not be called upon to stay the proceedings suo mote. But that is not the case here. The appellant is an agriculturist and therefore no step in execution can be had for a period of six months from the commencement of the Act, namely 14-7-1970. That being so, the confirmation of the sale on 6-11-1970 is non est and the sale remains unconfirmed for all legal purposes till 14-1-1971. On that day the application to set aside the sale under S. 20 (8) of the Act was made. That application is perfectly maintainable and the courts below are clearly in the wrong in holding that the confirmation of the sale on 6-11-1970 disentitles the appellant from claiming the benefit of S. 20 (8) after that.
In the result, I set aside the orders of the courts below and send back the case to the executing court with a direction to take back E. A. 82 of 1971 to file and dispose of the same in accordance with law and in the light of the observations made above. The parties shall bear their costs. Allowed. . .;
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