Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revision Application No. 421 of 1959

Judges

Tambe, J.

Acts

s. 3 of the M.P Temporary Postponement of Execution of Decrees Act, Act No. V of 1956,
Debt Conciliation Act and the Relief of Indebtedness Act
provisions of s. 13(3) of the Relief of Indebtedness Act,
s. 13(3) of the C.P & Berar Relief of Indebtedness Act
sub-s. (3) of s. 13 of the Relief of Indebtedness Act.
Section 13(3) of the Relied of Indebtedness Act
provisions of s. 3 of Act No. V of 1956
Section 3 of Act V of 1956,
s. 3 of Act V of 1956,

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Smart Summary

Summary of Judgment by Tambe, J.

Factual and Procedural Background

The applicants owed a debt to opponent No. 1 Kondba. The Debt Relief Court scaled down the debts on March 17, 1941, fixed liability at Rs. 1,577-8-0 and ordered payment by annual instalments of Rs. 159-12-0, the first instalment payable on March 1, 1942. The applicants paid instalments until March 1, 1946, after which they defaulted. Under s. 13(3) of the Relief of Indebtedness Act, opponent No. 1 applied to the Deputy Commissioner for a certificate; on July 1, 1953 the Deputy Commissioner issued an order under sub-s. (3) of s. 13 declaring that the Debt Relief Court's instalment order would cease to have effect and the balance would be recoverable as if a decree. Opponent No. 1 then initiated execution proceedings to recover Rs. 778-12-0 by sale of the applicants' field (Field No. 105, mauza Pujai, tahsil Wardha).

Notices and sale proclamations were issued and the sale was fixed initially for April 4, 1957, then adjourned to June 28, 1957, and finally to October 8, 1957. The property was ultimately sold at a Court auction on October 8, 1957 and purchased by opponent No. 2.

On October 17, 1957 the applicants filed two applications: (a) under s. 3 of the M.P. Temporary Postponement of Execution of Decrees Act, Act No. V of 1956, praying for stay of execution (i.e., that the sale not be confirmed) on the ground that they were agriculturists; and (b) under Order XXI, Rule 90 of the Code of Civil Procedure seeking to set aside the sale for alleged irregularities and illegalities.

The trial Court first heard the O. XXI, r. 90 application and fixed June 25, 1958 for recording evidence. On that date the applicants appeared but had not summoned witnesses and their request for time to summon witnesses was refused. The O. XXI, r. 90 application was dismissed on July 7, 1958. The subsequent application under s. 3 of Act V of 1956 was also dismissed on July 7, 1958. An appeal against the dismissal of the O. XXI, r. 90 order was dismissed, and the applicants filed the present revision application.

Legal Issues Presented

Whether s. 3 of the M.P. Temporary Postponement of Execution of Decrees Act (Act No. V of 1956) mandates a stay of execution proceedings against agriculturists where execution is based on a certificate under sub-s. (3) of s. 13 of the Relief of Indebtedness Act.
Whether an execution founded on a certificate issued by the Deputy Commissioner under sub-s. (3) of s. 13 of the Relief of Indebtedness Act is “proceedings in execution of any decree passed by a Civil Court” within the meaning of s. 3 of Act V of 1956.
Whether failure to issue a fresh sale notice under Order XXI, r. 66(2) of the Code of Civil Procedure before subsequent sale dates (after adjournments) renders the sale illegal and vitiates it.
Whether on June 25, 1958 the trial Court should have allowed the applicants time to summon witnesses (i.e., whether the trial Court improperly exercised its discretion in refusing adjournment).

Arguments of the Parties

Applicants' Arguments (as presented by Mr. Ranade)

Section 3 of Act V of 1956 is mandatory and requires a stay of execution proceedings against agriculturists; the applicants are agriculturists and thus execution should have been stayed.
The execution in this case should be regarded as execution of a decree by a civil Court within the meaning of s. 3, thereby attracting the statutory stay.
The executing Court was required to issue a fresh sale notice under O. XXI, r. 66(2) of the Civil Procedure Code before issuing sale proclamations and fixing the sales for June 28, 1957 and October 8, 1957; failure to do so amounted to illegality vitiating the sale. Reliance was placed on Dada Narayan v. Jaichand (1957 60 Bom. L.R. 380) and a Note in 1959 N.L.J. 14.
On June 25, 1958 the applicants were not given an opportunity to summon witnesses and should have been granted time to do so since they were under the impression the s. 3 application would be considered first and proceedings would be stayed.

The opinion does not set out detailed arguments advanced by the respondents/opponents in the record; the decision records the applicant's contentions and the Court's response.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dillisingh v. Thakur Teksingh, [1946] Nag. 821	Used as supporting authority for the proposition that a certificate under s. 13(3) of the Relief of Indebtedness Act is not a decree of a civil court (though executable as if a decree).	The Court cited this case as supportive authority for its conclusion that execution based on a Deputy Commissioner's certificate under s. 13(3) does not amount to execution of a decree passed by a civil court and therefore s. 3 of Act V of 1956 does not apply.
Jagannath v. Gulabsingh, [1949] Nag. 981, 985	Similarly cited for support on the legal character of certificates under the Relief of Indebtedness regime vis-à-vis civil court decrees.	The Court relied on this decision to reinforce its view that a certificate under s. 13(3) is not a civil court decree and thus is outside s. 3 of Act V of 1956.
Dada Narayan v. Jaichand, 1957 60 Bom. L.R. 380	Held that failure to give notice under O. XXI, r. 66(2) may amount to an illegality going to the root of the Court's jurisdiction.	The Court acknowledged that this decision supports the applicants' contention that omission to give notice under r. 66(2) can be an illegality; however, the Court held the Dada Narayan decision did not support the broader contention that a fresh sale notice is required every time a sale is adjourned.
Note 51 in 1959 N.L.J. 14 (C.R. No. 711/56 dated July 3, 1957)	Addressed whether fresh notice is required when property is to be resold after being previously sold and set aside; held fresh sale notice necessary in that factual context.	The Court distinguished that decision on its facts, noting in the present case the original proclamation had been drawn and the sale dates were adjournments rather than a resale after a previous confirmed sale; thus the Note did not assist the applicants.
Misc. Appeal No. 178 of 1937 (Bose, J.), dated October 5, 1938	Reflects a view consistent with the Court's position that fresh sale notice is not required in cases of mere adjournment (as opposed to resale after a sale was held and set aside).	The Court cited this earlier view as consonant with its conclusion that Order XXI, rr. 66 and 69 read together do not require a fresh sale notice simply because the sale was adjourned.

Court's Reasoning and Analysis

The Court proceeded in a structured manner addressing each contention raised by the applicants.

1. On the applicability of s. 3 of Act V of 1956:

The Court identified two conditions necessary to attract s. 3: (a) the execution proceedings must be in respect of a decree passed by a civil Court on the basis of a liability incurred before the Act came into force; and (b) the person proceeded against must be an agriculturist.
The Court observed the historical context: the Debt Conciliation Act and Relief of Indebtedness Act were enacted to grant relief to agriculturist debtors, and many cases thereunder were disposed of between 1936 and 1943, with substantial advantages given to debtors (scaling down debts and instalment payments).
Section 13(3) of the Relief of Indebtedness Act permitted the Deputy Commissioner to direct that the Debt Relief Court's instalment order cease to have effect and declared the balance recoverable “as if a decree.” The Court emphasised the statutory wording “as if,” concluding that a certificate issued under s. 13(3) is not literally a decree of a civil Court but a certificate that is executable as if it were a decree.
On this basis, the Court held that s. 3 of Act V of 1956 applies only to proceedings in execution of decrees passed by civil Courts and does not extend to execution proceedings based on certificates issued by the Deputy Commissioner under sub-s. (3) of s. 13 of the Relief of Indebtedness Act. The Court cited Dillisingh and Jagannath as supportive authorities.
The Court also noted the legislative context: if the Legislature intended to grant relief under s. 3 to the same debtors already dealt with under the Relief of Indebtedness Act (or to certificates issued under s. 13(3)), it would have done so in clear terms; it did not.

2. On the requirement for fresh sale notices under Order XXI:

The Court analysed Order XXI, r. 66 and r. 69. Rule 66 relates to drawing up a proclamation of sale for the first time and r. 66(2) requires that a proclamation be drawn up after notice to the decree-holder and judgment-debtor, stating time and place and describing the property.
Rule 69 governs adjournment of sales. It allows the Court or officer conducting the sale to adjourn sales and contains a proviso that where a sale is adjourned for longer than seven days a fresh proclamation under r. 67 shall be made unless the judgment-debtor consents to waive it.
The Court reasoned that r. 66 is meant to provide the initial opportunity for the judgment-debtor to object to the proposed sale. There is no reason to afford that initial opportunity anew simply because the sale was adjourned to a later date. The second proviso to r. 69 requires a fresh proclamation where adjourned beyond seven days, but it does not require a fresh sale notice under r. 66(2).
Accordingly, reading r. 66 and r. 69 together, the Court concluded that a fresh sale notice is not required when a sale is merely adjourned in the discretion of the Court. The Court accepted that Dada Narayan v. Jaichand supports the proposition that omission to give notice under r. 66(2) can be an illegality, but found that Dada Narayan did not support the applicants' broader contention that a fresh sale notice must be issued every time a sale is adjourned.

3. On the applicants' complaint about refusal to allow time to summon witnesses on June 25, 1958:

The applicants claimed they had not summoned witnesses because they believed the s. 3 application would be considered first and that execution would be stayed. The Court found this belief unlikely from the record: the trial Court had fixed the O. XXI, r. 90 application for hearing and had directed parties to summon witnesses, and no adjournment had been granted to the applicants.
The Court concluded the applicants had not satisfied the trial Court that they had adequate grounds for not summoning witnesses and that the trial Court had exercised its discretion judicially in refusing further time. The revisional court declined to interfere with that discretionary exercise.

Holding and Implications

Holding: Application dismissed.

Implications:

The applicants' revision application fails; their challenge to the sale and to the procedure followed in execution was rejected and the trial Court's orders dismissing both the O. XXI, r. 90 application and the s. 3 Act V of 1956 application were upheld.
The Court held, as a matter of law, that execution proceedings based on a Deputy Commissioner's certificate under sub-s. (3) of s. 13 of the Relief of Indebtedness Act are not proceedings in execution of a decree passed by a civil Court within the meaning of s. 3 of Act V of 1956, and therefore s. 3 did not mandate a stay in this case.
The Court also held that, when a sale is merely adjourned, a fresh sale notice under O. XXI, r. 66(2) is not required; r. 69 governs adjournments and a fresh proclamation under r. 67 is required only where adjournment exceeds seven days (subject to the proviso), not a fresh notice every time.
Direct consequence for the parties: the applicants' applications were dismissed with costs. The opinion does not discuss broader legal reform or declare the setting of any new binding precedent beyond the application of the cited authorities to the facts before the Court.

No information beyond the text of the provided opinion was added. Where the opinion did not supply arguments or broader implications, only the information present in the opinion has been summarized.

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Radhabai Ghubbaji v. Kondba Shioram

Tambe, J.:— The applicants were indebted to opponent No. 1 Kondba. They made an application before the Debt Relief Court and the Debt Relief Court after scaling down the debts on March 17, 1941, fixed their liability at Rs. 1,577-8-0 and ordered that the applicants should pay the aforesaid amount-by annual instalments of Rs. 159-12-0, first instalment being payable on March 1, 1942. The applicants paid instalments regularly upto March 1, 1946. Thereafter they failed to make payments and, therefore, opponent No. 1 Kondba applied to the Deputy Commissioner under s. 13(3) of the c.p & berar relief of indebtedness act for requisite certificate. On July 1, 1953, the Deputy Commissioner made an order under sub-s. (3) of s. 13 that the order of the Debt Relief Court fixing instalments shall cease to have effect and the balance remaining due shall be recovered as if a decree. Opponent No. 1 then on the basis of this order took out execution seeking to recover the balance of Rs. 778-12-0 by sale of the applicants' field No. 105 situate in mauza Pujai, tahsil Wardha. After issuing notice to the applicants, sale proclamation was drawn up and the sale was fixed for April 4, 1957. On that day, however, the sale did not take place. Another proclamation was then issued for holding sale on June 28, 1957. On that day also sale did not take place and another proclamation was issued fixing the sale on October 8, 1957. The said field was sold in Court auction on October 8, 1957, and was purchased by opponent No. 2. On October 17, 1957, the applicants made two applications, one under s. 3 of the M.P Temporary Postponement of Execution of Decrees Act, Act No. V of 1956, and by this application the applicants prayed that they being agriculturists under the provisions of s. 3 of Act No. V of 1956 proceedings in execution be stayed; in other words, the prayer of the applicants was that the sale be not confirmed; the other application was under O. XXI, r. 90, of the Code of Civil Procedure for setting aside the sale on the ground of certain irregularities and illegalities mentioned in the application. The trial Court first heard the latter application. June 25, 1958, was fixed for recording evidence of the parties. On June 25, 1958, the applicants appeared but had not summoned any witnesses. They prayed that they may be granted time to summon witnesses. Their, request was rejected. Ultimately the applicants' application under O. XXI, r. 90, was dismissed on July 7, 1958. Thereafter, the trial Court took up the former application of the applicants, viz. application under s. 3 of Act V of 1956 and that application also was dismissed on July 7, 1958. The applicants then took an appeal against the order of the trial Court dismissing their application under O. XXI, r. 90. It has been dismissed. The applicants, therefore, have preferred this revision application.

2. First contention raised by Mr. Ranade, learned counsel for the applicants, is that it was incumbent on the trial Court to stay execution, the applicants are agriculturists and s. 3 the provisions of which are mandatory, directs that execution of decrees against agriculturists should be stayed. This contention of the applicants has not been accepted, and, in my view, rightly. The said s. 3 runs:

“3. (1) All proceedings in execution of any decree for money, or proceedings for making final any preliminary decree for foreclosure or sale, or proceedings in execution of any final decree for sale, passed by a Civil Court on the basis of a liability incurred before this Act comes into force, in which a judgment-debtor or defendant, as the case may be, is, on the date this Act comes into force, an agriculturist, shall be stayed against such judgment-debtor or defendant, on an application made by him in this behalf during the period this Act remains in force.

(2) All attachments of growing crops, agricultural produce, live-stock and other, movable property of a perishable nature made in execution of decrees for money the execution of which has been stayed under sub-section (1) and existing on the date on which the stay order is passed shall be withdrawn.

(3) Any judgment-debtor or defendant who is an agriculturist, may, notwithstanding that no proceedings of the nature referred to in sub-section (1) are pending against him, make an application for stay under that sub-section.

(4) Every stay order passed by the court under this section shall relate back to the date of the application for stay filed by the judgment-debtor or defendant, as the case may be, and the proceedings shall for all purposes of this Act be deemed to have been stayed with effect from such date.”

3. To attract the provisions of s. 3, it must firstly be established that the execution proceedings are in respect of a decree passed by a civil Court on the basis of a liability incurred before that Act came into force and, secondly, that the person proceeded against is an agriculturist. It is well-known that the Debt Conciliation Act and the Relief of Indebtedness Act were enacted with a view to grant relief to agriculturist debtors. Cases started thereunder were disposed of between 1936 and 1943 and by 1943 all the proceedings relating to the indebtedness of a debtor agriculturist who had applied thereunder were completed. These debtors had received considerable advantage. Their debts were substantially scaled down, the reduced amount was made payable by easy instalments. Section 13(3) of the Relied of Indebtedness Act inter alia provided that if two consecutive instalments remain in arrears the Deputy Commissioner shall order that the order of the Debt Relief Court fixing instalments shall cease to have effect and the balance remaining due shall be recoverable as if a decree. M.P Temporary Postponement of Execution of Decrees Act was passed in 1956. It can be safely assumed that the Legislature was well aware of the aforesaid circumstances, the provisions of s. 13(3) of the Relief of Indebtedness Act, and the certificates already issued by the Deputy Commissioner or those which would be issued in future under that section: If the Legislature had intended to grant relief to the same debtors again under s. 3 of Act V of 1956, the Legislature would have in clear terms said so; not only it has not said so but it has not done so. As already stated s. 3 of Act V of 1956 is attracted only when proceedings in execution are in respect of a decree passed by a civil Court, and the person proceeded against is an agriculturist.

4. Even assuming that the applicants are agriculturists it cannot be said that the execution proceedings taken against them are in respect of a decree passed by a civil Court. The execution is in respect of a certificate issued by the Deputy Commissioner under sub-s. (3) of s. 13 of the Relief of Indebtedness Act. The section in terms says that the certificate is executable as if a decree. The use of the expression ‘as if’ in sub-s. (3) connotes that the certificate is not a decree of a civil Court, and even though it is not a decree of a civil Court, the Legislature confers powers on the civil Courts to execute that certificate as if it is a decree. Section 3 of Act V of 1956, therefore, has no application to proceedings in execution in respect of a certificate issued by the Deputy Commissioner under sub-s. (3) of s. 13 of the Relief of Indebtedness Act. I find support in Dillisingh v. Thakur Teksingh . [1946] Nag. 821. and Jagannath v. Gulabsingh . [1949] Nag. 981, 985..

5. It is next contended that it was incumbent on the executing Court to issue a fresh sale notice under O. XXI, r. 66(2), of the Civil Procedure Code before issuing a sale proclamation and fixing the sale for June 28, 1957, and October 8, 1957. Reliance is placed on Note 51 in 1959 N.L.J 14. Mr. Ranade argues that the failure on the part of the trial Court to issue sale notice in respect of sales fixed for June 28, 1957, and October 8, 1957, amounts to illegality, vitiating the sale. Reliance is placed on a decision reported in Dada Narayan v. Jaichand . 1957 60 Bom. L.R 380.. Judicial opinion is divergent as to whether failure to give notice under O. XXI, r. 66(2), amounts to an illegality or irregularity. The afore said decision of this Court, however, supports Mr. Ranade's contention that failure to give notice under O. XXI, r. 66(2), amounts to an illegality and goes to the root of the jurisdiction of the Court. But that decision, however, is no authority in support of Mr. Ranade's other contention that it is incumbent on the Court to issue a sale notice every time fresh proclamation is ordered on adjournment of a sale.

6. The other decision relied on viz. Note 51 in 1959, N.L.J 14, C.R No. 711/56 dated July 3, 1957, is also not of any assistance to Mr. Ranade. That decision is distinguishable on facts. In that case, sale of an item of property was held and it was then set aside. When the property was going to be resold the question arose whether it was necessary to give a fresh notice and it was held that, fresh sale notice was necessary. The facts of the present case are different. As already stated, before the sale proclamation was drawn up and the sale fixed for April 4, 1957, sale notice had been issued to the applicants under O. XXI, r. 66(2), that the property had not been sold at any time up to October 8, 1957, the sale fixed for April 4, 1957, was first adjourned to June 28, 1957, and then to October 8, 1957. The provisions of O. XXI, r. 69, of the Civil Procedure Code, under which the Court must have adjourned the sale first on April 4, 1957, and then on June 28, 1957, when read together with those of O. XXI, r. 66(2), afford a complete answer to the contention raised by Mr. Ranade O. XXI, r. 66, relates to the drawing up of a proclamation of sale for the first time after the Court has ordered that particular property to be sold by public auction in execution of a decree. clause (1) of r. 66 provides that where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. Clause (2) provides that such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible the property to be sold. Further clauses are not relevant to the issue. These provisions appear to have been enacted to give an opportunity to the judgment-debtor to raise an objection if he so desires against the proposed sale of that property. There is no reason to afford another such opportunity to him when the sale of that property does not take place on the appointed date but is only adjourned to some other date. Now, once a proclamation is drawn up and sale is fixed for a particular day but the sale cannot take place for some reason or the other on that day what procedure has to be followed is laid down in r. 69 of O. XXI. It provides that the Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reason for such adjournment: provided that, where the sale is made in, or within the precincts of, the Court-house, no such adjournment shall be made without, the leave of the Court. Third proviso to r. 69 is not material. Second proviso provides that where a sale is adjourned under sub-r. (1) for a longer period, than seven days, a fresh proclamation under r. 67 shall be made, unless the judgment-debtor consents to waive it. It would be seen that the second proviso does not provide for issuance of a fresh sale notice. It only provides for issuance of a fresh proclamation in the event sale is adjourned for a period longer than 7 days. Reading the provisions of O. XXI, rr. 66 and 69 together it becomes clear that a fresh sale notice is not required to be given when a sale is merely adjourned in the discretion of the Court for certain reasons. The contention raised by Mr. Ranade, therefore, should fail.

7. A similar view has been taken by Bose, J. (as he then was) in Miscellaneous Appeal No. 178 of 1937, dated October 5, 1938.

8. Lastly, Mr. Ranade contends that on June 25, 1958, the applicants should have been given a chance to summon their witnesses.

9. The applicants were under the impression that their application under s. 3 of Act V of 1956 would first be taken up for consideration and they were under the impression that the proceedings in execution would be stayed under that provision. They had therefore, not summoned their witnesses. On the material on record I find it difficult to assume that the applicants could have any such impression that their application under s. 3 of Act V of 1956 would be considered first. As stated above, the trial Court had fixed the application under O. XXX, r. 90, for hearing and had directed the parties to summon their witnesses. The trial Court had not granted adjournment to the applicants. Obviously, the applicants were not in a position to satisfy the trial Court that they had adequate grounds for not summoning their witnesses. I do not consider it proper to interfere with the discretion exercised by the trial Court in this matter as it cannot be said that it had not been exercised judicially.

10. In result, the application fails and is dismissed with costs.

11. Application dismissed.

Radhabai Ghubbaji v. Kondba Shioram

Summary of Judgment by Tambe, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicants' Arguments (as presented by Mr. Ranade)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Radhabai Ghubbaji v. Kondba Shioram

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