ABDUL RASAK ROWTHER Vs. ABDUL RAHIM ROWTHER

JUDGEMENT

(1.) The appellant was the purchaser of properties under a sale in execution which has been held by the Courts below to be a nullity. The facts are rather unusual. The proceedings started with the decree in August, 1933, in a suit for contribution. The present contesting respondent was the sixth defendant in the latter, being impleaded as the purchaser of properties covered by the decree. He applied for a stay under Section 20 of the Madras Agriculturists Relief Act, IV of 1938, which was ordered. He filed an application under Section 19 of that Act for relief. On 28 April, 1939, that petition was dismissed. The judgment debtor filed C.R.P. No. 2084 of 1939 against this order and he also filed an appeal to the Court of the Subordinate Judge of Dindigul. This appeal was entertained without any objection to the jurisdiction and it resulted in a remand to the lower Court with a direction to amend the decree as prayed for and on 8th December,. 1939, the decree was amended. The decree-holder thereupon filed C.R.P. No. 411 of 1940 to this Court on 8 January, 1940. Pe nding these proceedings the decree-holder took out execution of the amended decree in E.P. No. 542 of 1940, stating that he was taking out execution without prejudice to the appeal pending" against the order scaling down thV decree. A sale wa,s held under this execution petition and the property was sold on 28 June, 1941, to the fifth defendant. He got possession in the following September. On 10 October, 1941, the decree-holder's C.R.P. No. 411 of 1940 came up for hearing before the much earlier petition filed by the judgment-debtor and it was held that the apeal to the Subordinate Judge was incompetent and the order was set aside and the original decree was restored. A month later on 7 November, 1941, the judgment-debtor's petition against the original dismissal of his application came up for hearing (C.R.P. No. 2084 of 1939) and it was allowed and as a result thereof the decree was again amended the same figures being restored which had been substituted as a result of the incompetent amendment under the order of the Subordinate judge.

(2.) The present application was filed by the sixth defendant who is interested in the property sold, to set aside the sale on the ground that it is a nullity having been held under the decree as amended under the appellate order which has b?en declared to be incompetent by this Court's decision in C.R.P. No. 411 of 1940. Both the Courts below have held that the sale is bad and the Court auction purchase has filed the present appeal. We have first to deal with certain minor contentions. The lower. Appellate Court somehow came to the conclusion that the sale was bad because of the subsistence of a stay of execution under Section 20 of Act IV of 1938. a clearly an error. A stay under Section 20. operates until the Court which passed the decree had passed orders on the application to be made under Section 19. The petition under Section 19 was dismissed on 28 April, 1939. The dismissal of that application would automatically vacate the stay and so far as we are aware there was no proceeding in which any fresh stay was imposed. A further contention is based on the retrospective operation of Madras Act XV of 1943 which in Section 5 indicates that the amendment made by Section 3 of this Act should be deemed to have come into operation on the 27 of October, 1939. The argument is that even though the appeal to the Subordinate Judge was apparently incompetent when it was filed, by the time the judgment was pronounced the retrospective operation of Act XV of 1943, must be deemed to have made the appeal competent. This contention must fail for the reason that when the new Act gave the right of appeal retrospectively from 27 October, 1939, that right of appeal could not take away the vested retrospectively from 27 October, 1939, that right of appeal could not take away the vested rights which had accrued as a consequence of the final order passed before 27 October, 1939. As the order passed in the present case on 28 April, 1939, was non-appealable the retrospective right of appeal operating from 27 October, 1939, will not make such an order appealable.

(3.) Turning now to the main question in this appeal, what is the effect of the sale held under the amended decree, having regard to the fact that the decree was amended in consequence of the incompetent appeal order? The fact that the amendment was subsequently restored by this Court in the later revision petition against the original dismissal of the application under Section 19, does not legally affect the matter, although it does throw some light On the practical effect of the respondent's contention. The original decree provided for payment to the decree-holder of a considerably larger sum than that payable under the decree as amended. The effect of the amendment was to introduce an illegal curtailment of the decree- holder's claim when the sale was held. It was held under the decree as amended. The decree as amended, was after all nothing more than the original decree with a portion thereof removed by the illegal order. This is not a case in which the owner of properties has suffered any loss as a consequence of the illegal alteration of the decree. Of the original decree a sufficient amount remained to give legal support to the sale which was held. We are of opinion that the sale, in the circumstances, cannot be held to be a nullity. In the result, therefore, the appeal is allowed with costs throughout. The petition of the contesting respondent is dismissed.