NARAYANAN CHETTIAR Vs. RATHINASAMI PADAYACHI
HIGH COURT OF MADRAS
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Rajamannar, J. -
(1.) THERE is no reason whatever to Interfere with the order passed by the learned District Munsif. The petitioner is the decree -holder. The respondent who was the first judgment -debtor made an application on 3 -6 -1949 under Section 19 of Madras Act 4 of 1938 as amended by Act 23 of 1948 for scaling down the decree which had been passed against him on 24 -11 -1933. The decree -holder raised a preliminary objection that the application was not maintainable on the ground that the judgment -debtor had previously filed an application for stay under Section 20 of the Act and there was an order staying execution passed on 14 -3 -1946, but he did not file any application within 60 days thereafter and there -fore the Judgment -debtor was not entitled to once more file an application for stay as he did and then file a substantive application under section 19. It may be mentioned that prior to the present application under Section 19 there was another application under Section 20, and there Was an order of stay passed on 17 -3 -1949 and it is not disputed that the present petition under Section 19 has been filed within the prescribed time from the date of that order.
(2.) THE only question therefore is whether the judgment -debtor not having filed an application under Section 19 within the prescribed time from the date of the stay order under Section 20 passed on his prior application, is now precluded from again filing another application under Section 20 followed by an application under Section 19. Undoubtedly, the judgment -debtor would not have such a right, that is, a right to file successive applications under Section 20 or Section 19 if the reliefs which he claims as being entitled to are the same in the several applications. But at the same time it is equally clear that if a subsequent application is based upon a provision of law not in existence at the time of a prior application of his he will not be debarred from filing the later application simply because he had filed a prior application when the state of law did not entitle him to the relief to which he became entitled by a subsequent change in the law. The judgment -debtor in this case alleges that he has become entitled to relief under the provisions of the Amending Act 23 of 1948, relief which was not available to him before the amendment. On this footing, the second application was certainly maintainable. The learned District Munsif was right in holding that the prior application under Section 20 filed in 1946 will not be a bar to a fresh application under Section 20 after the Amending Act 23 of 1948. Learned counsel for the petitioner is afraid that the order of the learned District Munsif may be understood as having finally decided the question of the applicability of the provisions of the Amending Act of 1948. In my opinion, any apprehension on this score is unfounded. The learned District Munsif has not finally decided as to the applicability of the provisions of the new Act; he has only 'prima facie' held on the allegations of the judgment -debtor that there will be no bar on account of the prior application under Section 20 and that the petition was maintainable.
(3.) THE revision petition is therefore dismissed with costs.;
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