Decided on August 11,1944



- (1.) THE petitioner was defendant 1 in S.C. No. 146 of 1940, on the file of the Subordinate Judge of Cuddalore. In execution of his decree, the respondent sought to bring the property of the petitioner to sale; and sale was ordered. Two days before the sale was due to take place, the petitioner put in an application Under Section 4, Madras Debt Conciliation Act; and on the date of sale, drew the attention of the executing Court to the fact that he had filed an application and asked the Court to stay the sale Under Section 25 of the Act. The lower Court dismissed his application on various grounds. Prima facie, the Court is bound to stay the application Under Section 25 of the Act if a petition is pending before the Board Under Section 4. It was contended by Mr. K.S. Champakesa Ayyangar, the learned advocate for the respondent, that the petitioner is not an agriculturist. Section 25, however, makes no reference to agriculturists at all. It says that: When an application has been made to a Board Under Section 4 any suit or other proceedings ... shall not be proceeded with .... Whether the petitioner is an agriculturist or not is a matter to be considered by the Board; and there can be no doubt that a petition was pending before the Board.
(2.) IT was next argued that the Board as and from 14th December 1943, was dissolved; and that as there was no Board existing, the execution proceeding should not be stayed. Section 25 says that any proceeding before a civil Court shall not be proceeded with until the Board has dismissed the application; and the dissolution of the Board does not amount to dismissal of the application. This question came up before Byers J. in Vahidunnissa Sahib v. : AIR1944Mad225 . I respectfully agree with his conclusion that, in such circumstances, it cannot be said that the Board has dismissed the application.
(3.) THE third argument is that by a notification of 8th May 1943, the Government ordered the Board to take on file any applications that might be made, but ordered it to adjourn those applications sine die. It is therefore argued that the Board at the time when it entertained this application was not a properly constituted Board to which Section 25 could apply. It is conceded that prior to 8th May 1943, the Board was a properly constituted Board and that it continued as such up to the date of dissolution on 14th December 1943. The direction of the Government on 8th May 1943, was an executive one ordering the Board not to proceed with any new petitions but to adjourn them sine die. None of the powers of the Board were taken away on 8th May 1943, and the fact that the Board was to adjourn the petition sine die, which power it had in any event, could not affect the constitution of the Board. Section 17 of the Act says: If no amicable settlement is arrived at under Sub -section (1) of Section 14 within 12 months from the date of the application Under Section 4, the Board shall dismiss the application. That does not, however, mean that after 12 months the application becomes automatically dismissed. It is a mandatory direction to the Board which it is bound to carry out; but the dismissal has to be made by the Board; and the dismissal is a judicial act. The petition is therefore allowed and the lower Court ordered to stay the sale of the petitioner's lands until the petition before the Debt Conciliation Board has been dismissed. The petitioner is entitled to his costs in this Court and in the lower Court.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.