# SRI RANGA NILAYAM RAMA KRISHNA RAO v. KANDOKOlU CHELLA Y AMMA alias MANGAMMA AND ANOTHER

- **Citation:** [1950] 1 S.C.R. 806
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Case number:** Civil Appeals Nos. 56 and 57 of 1949
- **Bench:** Handrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-ranga-nilayam-rama-krishna-rao-v-kandokolu-chella-y-amma-alias-mangamma-and-155
- **Pages:** 16

## Headnote

Madras Agriculturists' Relief Act (IV of 1935), ss. 3 (D),
8, 10, 19-Sale of estate in execution of decree-Whether cwner
ceases to be " Agriculturist " pending application to set aside saleApplications to set aside sale and for relief under Act-Maintainability-Order confirming sale and granting relief-Legality-0.P.G.
(1908), O.XXI, r. 90-Execution .ale-Appeal against order refusing
to set aside sale-When 8"le becomes absolute and title passesReceiver-Appointment of receiver, effect of.
In execution of a, decree .obtained on a mortgage a village
owned by the mortgagor which was included in the niortgage was
sold by the court on the 6th July 1935 and it was purchased by
the mortgagee. An application by the mortgagor under Q.XXI1 r. 90,
C.P.O., for setting aside the sale for irregularities
~·as dismissed,
the sale was confirmed and full sittisfaction of the decree was recorded, on the 6tb March 1943.
A few days afterwards the mort·
gager and his adopted son ma.de an application under s. 19 of the
Madras Agriculturists' Relief Act, 1938, praying for relief unrler the
~A..ct, and, as this application also was dismissed they preferred t\vo
appeals, one from the order dismissing this application and the
other against the order of 6th March 1943 refusing to set aside the
sale. The High Court of Madras held that, as the mortgagor's
village had been sold be did not come within the purview of
cl. (D) of the proviso to s- 3 of the Madras Agriculturists' Relief
Act and so be was entitled to claim relief under t.be Act and the
debt stcod discharged under the provision of the Act, but the sale
was not liable to be set aside ; and in accordrtnce with this
judgment the decree-bolder wa• directed to pay the amount !o1·
wbicb the property had been sold with interest thereon:
Held per F.AZL ALI and MUKHERJEA JJ.-(i) that tbe conclusions arl'ived at by the High Court were self·contra:lictory
beca.uso if the ea.le was effective on the date it was held or confirmed, the decree was also satisfied on that dais and the judgment-
. debtors were no longer entitled to invoke the provisions of the
Act ; (ii) that the High Court was not justified in law in deciding
the appeal on the footing that the judgment-debtors ceased to be
owners of the village from the date of sale and on that account
were not hit by cl. \D) of the proviso to s. 3 of the Act inasmuch
as when an appeal is preferred from an order rejecting an appli·
cation under O.XXI, r. 90, C.P.C., to set aside an execution sale,
the sale does not bscome absolute until the matter is finally
decided by the appellate court.
.•
S.C.R.
SUPREME COURT REPORTS
807
Per CHANDRASEKHAI<A AIYAR J.-After the execution sale in
!950
1935 the only interest which the ji;dgment-debtors had in the
village was to have the sale set aside under the relevant proSri Ratiga.
·visions of the Civil Procedure Code and this interest, not being Ntlayani &ma
an interest contemplated by s. 3 (iii (a) & (b) and s. 19 (1) of the Krishna Ra.o
Act, they were not "agriculturists" and were not entitled to any
v.
relief under the Act.
Kandokori
Held also, per FAZL ALI and MUKHERJEA JJ.~A person does Oh,llayamma
not cease to be a land-holder of an estate within the meaning of
and Another.
cl. (D) to the proviso to s. 3 of the Act merely because the estate
is placed in the hands of a receiver.
Bhawani K<mwar v. Mathurn Pra•ad Singh (I.L.R. 40 Cal. 89)
and Chandramani Shaha v. A.narja" Bibi \l.L.R. 61 Cal. 945)
r~ferred to.
Judgment of the Madras High Court reversed.

## Text

1950
Oot. l't,
806
SUPREME COURT REPORTS
[1950]
SRI RANGA NILAYAM RAMA KRISHNA RAO
v.
KANDOKOlU CHELLA Y AMMA alias MANGAMMA
AND ANOTHER
[SAIYID FAZL Au, MUKHERJEA and
(HANDRASEKHARA AIYAR JJ.]
Madras Agriculturists' Relief Act (IV of 1935), ss. 3 (D),
8, 10, 19-Sale of estate in execution of decree-Whether cwner
ceases to be " Agriculturist " pending application to set aside saleApplications to set aside sale and for relief under Act-Maintainability-Order confirming sale and granting relief-Legality-0.P.G.
(1908), O.XXI, r. 90-Execution .ale-Appeal against order refusing
to set aside sale-When 8"le becomes absolute and title passesReceiver-Appointment of receiver, effect of.
In execution of a, decree .obtained on a mortgage a village
owned by the mortgagor which was included in the niortgage was
sold by the court on the 6th July 1935 and it was purchased by
the mortgagee. An application by the mortgagor under Q.XXI1 r. 90,
C.P.O., for setting aside the sale for irregularities
~·as dismissed,
the sale was confirmed and full sittisfaction of the decree was recorded, on the 6tb March 1943.
A few days afterwards the mort·
gager and his adopted son ma.de an application under s. 19 of the
Madras Agriculturists' Relief Act, 1938, praying for relief unrler the
~A..ct, and, as this application also was dismissed they preferred t\vo
appeals, one from the order dismissing this application and the
other against the order of 6th March 1943 refusing to set aside the
sale. The High Court of Madras held that, as the mortgagor's
village had been sold be did not come within the purview of
cl. (D) of the proviso to s- 3 of the Madras Agriculturists' Relief
Act and so be was entitled to claim relief under t.be Act and the
debt stcod discharged under the provision of the Act, but the sale
was not liable to be set aside ; and in accordrtnce with this
judgment the decree-bolder wa• directed to pay the amount !o1·
wbicb the property had been sold with interest thereon:
Held per F.AZL ALI and MUKHERJEA JJ.-(i) that tbe conclusions arl'ived at by the High Court were self·contra:lictory
beca.uso if the ea.le was effective on the date it was held or confirmed, the decree was also satisfied on that dais and the judgment-
. debtors were no longer entitled to invoke the provisions of the
Act ; (ii) that the High Court was not justified in law in deciding
the appeal on the footing that the judgment-debtors ceased to be
owners of the village from the date of sale and on that account
were not hit by cl. \D) of the proviso to s. 3 of the Act inasmuch
as when an appeal is preferred from an order rejecting an appli·
cation under O.XXI, r. 90, C.P.C., to set aside an execution sale,
the sale does not bscome absolute until the matter is finally
decided by the appellate court.
.•
S.C.R.
SUPREME COURT REPORTS
807
Per CHANDRASEKHAI<A AIYAR J.-After the execution sale in
!950
1935 the only interest which the ji;dgment-debtors had in the
village was to have the sale set aside under the relevant proSri Ratiga.
·visions of the Civil Procedure Code and this interest, not being Ntlayani &ma
an interest contemplated by s. 3 (iii (a) & (b) and s. 19 (1) of the Krishna Ra.o
Act, they were not "agriculturists" and were not entitled to any
v.
relief under the Act.
Kandokori
Held also, per FAZL ALI and MUKHERJEA JJ.~A person does Oh,llayamma
not cease to be a land-holder of an estate within the meaning of
and Another.
cl. (D) to the proviso to s. 3 of the Act merely because the estate
is placed in the hands of a receiver.
Bhawani K<mwar v. Mathurn Pra•ad Singh (I.L.R. 40 Cal. 89)
and Chandramani Shaha v. A.narja" Bibi \l.L.R. 61 Cal. 945)
r~ferred to.
Judgment of the Madras High Court reversed.
APPELLATE JuRISDICTION: Civil Appeals Nos. 56 and
57 of 1949. Appeals from the orders of the High Court
of Judicature at Madras (\N'adsworth and Patanjali
•
Sastri JJ.) dated 24th October, 1945, in A.A.O.
,
Nos. 372 of 1943 and 634 of 1944 which were appeals
from the orders of the Subordinate Judge of Ellore in
E.A. No. 440 of 1937 and C.M.P. No. 152 of 1943 in
0.5. No. 87 of 1923.
P. Somasundaram (V. V. Chaudhry, with him) for
the appellant.
V. Rangachari (K. Mangachari, with him) for the
respondents.
1950. October 17.
The Court delivered judgment
as follows.
F AZL Au J. -These appeals arise out of an execution proceeding, and the main point to be decided in
them is what is the effect of certain provisions of the
Madras Agriculturists· Relief Act (Madras Act IV of
1938, which will hereinafter be referred to as "the
Madras Act"), on the rights of the parties. How this
point arises will be clear from a brief statement of the
facts of the case.
It appears that in 1908, one Veeresalingam, the
husband of the first respondent, borrowed a sum of
Rs. 9,000 from one Sitharamayya, and executed a
mortgage bond in his favour. Subsequently a suit was
Fa11l Ali J.
808
SUPREME COURT REPORTS
(1950]
1950
instituted by the mortgagee to enforce the mortgage
and a final decree in that suit was passed on the 19th
, Sri Ranga . August, 1926. Thereafter, on the 28th October, 1931,
N.tayam Ra.ma the decree-holder applied for the execution of the decree
Krishna Rao
v.
by.the sale of the mortgaged property. In 1933, the
Kandakari
decree-holder transferred the decree to one Sobhanadri,
Oh•llayamm• after whose ·death his son, the appellant before us, was
and Anather. brought on the record as his legal representative in the
Faz! Ali J.
execution proceedings. Several years before the assignment of the decree, Veeresalingam, the defendant, had
died and his widow, the firstrespondent, was therefore
brought on the record as his legal representative. On
the 6th July, 1935, two items of property were sold in
execution of the decree and purchased by the decreeholder, these being:-(!) a village called Tedlam in
West Godavari District ; and (2) 4 acres and 64 cents
oJ land in Madepalli village. The first property was •
sold for Rs. 21,000 and the second for Rs. 1,025. As,
however, the amount due under the decree was only
_about Rs. 17,860 and odd, the sale of the second property was subsequently set aside and the decree-holder
. deposited into Court the excess amount of about
Rs. 3,000 and odd after setting off the decretal amount
against the price of the first item of property. On the
5th August, 1935, the first respondent filed an application under Order XXI, rule 90, and section 47 of the
Code of Civil Procedure, to set aside the sale held in
July, 1935, alleging certain. irregularities in the conduct
of the sale. That application was after several years
heard by the Subordinate Judge of Ellore, who by his
order dated the 6th March, 1943, dismissed it and
directed the sale of the first property to be confirmed and
full satisfaction of the decree to be entered. After about
12
day~. i.e., on the 18th March, 1943, the first respondent and the second respondent, who had been
adopted by the former on the 12th March, 1936, under
the will of her husband and was subsequently brought
on record, filed an application under section 19 of the
Madras Act praying for certain reliefs under that Act.
This application was dismissed on the 22nd March,
1943.
Subsequently, two appeals were filed on behalf
S.C.R.
SUPREME COURT REPORTS
809
of the respondents (who will hereinafter be sometimes
19~0
referred to as judgment-debtors), one against the order
.
.
refusing to set aside the sale under Order XXI, rule N.~" Ra';:" .
90 of the Civil Procedure Code, and the other against
~;;,~:. ;';;
the order dismissing the application under the Madras
•-
Act.
These appeals were heard together by two learned
Kandol.m
Judges of the Madras High Court and they took the Chellayamma
view that the judgment-debtors' application under the and .l.nother.
Madras Act was maintainable notwithstanding the
FazlAliJ.
fact that the sale had been confirmed and full satisfaction of the decree recorded, and remitted the case to
the trial Court for a
finding on the
following
questions, namely-
(!) whether the applicants were agriculturists;
and
(2) if so, what would be the result of applying the
provisions of Madras Act IV of 1938 to the decretal
debt against them?
So far as regards the judgment-debtors' appeal
against the order dismissing their application under
Order XXI, rule 90, the learned Judges were inclined
to agree with the trial Court that the sale should stand
but declined to pass final orders in the appeal on the
ground that "it would seriously prejudice the judg.
ment-debtors in the connected application for relief
under section 19 of the Madras Act IV of 1938."
The Subordinate
.T udge answered the questions
referred to him by the High Court on remand as
follows:-
(1) The judgment-debtors were not agriculturists
and were not therefore entitled to the benefits of the
Madras Act ; and
·
(2) If th~y were agriculturists, they were not liable
to P~Y. anythmg under the decree, as, in view of the
prov1s10ns of the Act, the debt stood discharged on the
date of sale.
·
· When however the matter came up before the learned
Judges of the High Court, they reversed the first finding of the trial. Cour! and held that the judgmentdebtors were agncultunsts within the meaning of th1.;
....
1950
Sri Ranga
Nilnyam Rama
Kri1htta Rao
v.
KtJndokori
Ohe1layatnmtl
and A'iother
Faal Ali J.
810
SUPREME COURT REPORTS
[1950]
Act, and that the debt stood discharged in view of
section 8 (2) of the Act.
At the same time, they held
that the sale was not liable to be set aside, and in this
view dismissed one of the appeals and allowed the
other. Then followed certain proceedings to which it
would have been unnecessary to refer but for the fact
that the judgment-debtors have attempted to rely on
them in support of one of their preliminary objections
to the maintainability of these appeals.
It appears that on the next day after the judgment
of the High Court was delivered in the two appeals,
counsel for
the respondents wrote a letter to the
Registrar of the High Court to direct the posting of
the two cases 'for being mentioned' before the Court
in order to obtain necessary directions consequent on
the orders passed by it in the appeals. This letter
was not placed before the learned Judges until the
judgment had been signed by them and accordingly
the judgment-debtors filed two petitions, one being a
review petition to the. High Court and the other being
a petition to the trial Court praying "that the decreeholder may be ordered to pay to the petitioners the
purchase money of Rs. 21,000 with interest thereon at
6 per cent. per annum from the date of sale till the date
of payment." The trial Court dismissed the latter
petition on the ground that it was not maintainable,
and the judgment-debtors tiled an appeal against the
order.
The appeal as well as the review petition of
the judgment debtors were heard together by the
learned Judges who directed the decree-holder's counsel
to elect whether his client would deposit the purchase
money into Court or have the sale set aside.
The
decree-holder applied for a short adjournment and
ultimately on the 15th November, 1946, his counsel
stated that his client wished to retain the property
which he had purchased and to pay the purchase
money into Court. Thereupon, he was directed to pay
the sum of Rs. 21,000 together with interest within 3
months from that date.
Subsequently, the appellant (decree.holder) having
obtained leave to appeal from the High Court preferred
•
•
-
S.C.R.
SUPREME COURT REPORTS
811
these appeals before us. It may be stated here that
1950
along with the application for leave to appeal, the
appellant had filed an application for excusing the ., 1
8'' RonRg•
d 1
. fil'
h f
l'
,
h' h
.,, ayam •ma
e ay m
mg t e ormer app 1cat10n w IC he accountKri.h,.a Rao
ed for mainly by referring to the proceeditlgs for the
v.
review of the judgments in the previous appeals to the
Kandokori
High Court. This application was granted and the CheJln11•mm•
delay was condoned.
""d A>wlher,
As has been already stated, the main point arising
Fazl dZ. J,
in these appeals relates to the effect of the Madras Act
upon this litigation. That Act was passed and came
into effect in 1938, while the execution proceedings
were still continuing. It will be recalled that the sale
took place on the 6th July, 1935; and the application
for setting it aside was not disposed of until the 6th
March, 1943.
But, strangely enough, the judgmentdebtors did not apply fur any relief under the Madras
Act during this period, and they made their applica.
tion only after the sale had been confirmed and satisfaction of the decree had been entered. How far this
belated application affects the right claimed by the
judgment-debtors under the Act is one of the questions
raised in these appeals, and I shall deal with it after
referring to the material provisions of the Act and the
findings of the High Court which have given rise to
several debatable points.
The sections of the Act which are material for the
purpose of these appeals are sections 3, 8 and 19. Section 3 defines an agriculturist and has a proviso stating
that in certain cases a person shall not be deemed to
be an agriculturist. The relevant clause of this pro~
visa, to which I shall also have to advert later, is
clause (D) which runs thus:-
"Provided that a person shall not be deemed to be
an 'agriculturist' if he -
(D) is a landholder of an estate under the Madras
Estates Land Act, 1908, or of a share or portion thereof in respect of which estate, share or portion any sum
exceed!ng Rs. 50~ is paid as. peshkash or any sum
exceedmg Rs. 100 1s paid as quit-rent, jodi, kattubadi,
812
SUPREME COURT REPORTS
[1950]
1950
poruppu or the like or is a janmi under the Malabar
Tenancy Act, 1929, who pays any sum exceeding
Sri Ra•ga
Rs. 500 as land revenue to the Provincial GovernNilayrim R11ma
. ent "
Kri11hna Rio tn
·
v.
The precise question which is said to arise with
Kandokori
reference to this provision is whether by reason of being
Ohe!layamma the owners of village Tedlam, the judgment-debtors
••• Another. should be held to be not entitled to relief under the
Fa•l Ali J.
Act. The other material sections 8 and 19 run as
follows:-
"8. Debts incurred before the 1st October, 1932,
shall be scaled down in the manner mentioned hereunder, namely:-
(1) All interest outstanding on the 1st October,
1937, in favour of any creditor of an agriculturist
whether the same be payable under law, custom or
contract or under a decree of Court and whether the
debt or other obligation has ripened into a decree or
not, shall be deemed to be discharged, and only the
principal or such portion thereof as may be outstanding shall be deemed to be the amount repayable by the
agriculturist on that date.
(2) Where an agriculturist has paid to any
creditor twice the amount of the principal whether by
way of principal or interest or both, such debt including the principal, shall be deemed to be wholly discharged.
(3) Where the sums repaid by way of principal or
interest or both fall short of t\vice the amount of the
principal, such amount only as would make up this
shortage, or the principal amount or such portion of
the principal amount as is outstanding, whichever is
smaller, shall be repayable.
(4) Subject to the provisions of -sections 22 to
25, nothing contained in sub-sections (1), (2) and (3)
shall be deemed to require the creditor to refund any
sum which has been paid to him, or to increase the
liability of a debtor to pay any sum in excess of the
arp.ount which would have been payable by him if
this Act had not been passed.
-
S.C.R.
SUPREME COURT REPORTS
813
-
Explanation.-Where a debt has been renewed or
19M
included in a fresh document in favour of the same
cred!tor, the principal originally advanced by the N•l~~~~a~~:a
creditor together with such sums, if any, as have been
Krishna Rao
subsequently advanced as· principal shall alone be
v.
treate<;t as the principal sum repayable by the agriKandokori
cu]tunst under this section.
Ch•1layamma
and Another.
19. Where before the commencement of this Act, .
a Court has passed a decree fo.r the repayment of a
Fa•I ..11; J.
debt, it shall, on the application of any judgmrntdebtor who is an agriculturist or in respect of a Hindu
joint family debt, on the application of any member
of the family whether or not he is the judgment.debtor
or on the application of the decree-holder, apply the
provisions of this Act to such decree and shall, notwithstanding anything contained in the Code of Civil
Procedure, 1908, amend the decree accordingly or enter
satisfaction, as the case may be:
Provided that all payments made or amounts recovered, whether before or after the commencement of
this Act, in respect of any such decree shall first be
applied in payment of all costs as originally decreed to
the creditor."
These sections are material, because in the present
case the judgment debtors asked the decree to be
amended under section 19 of the Act and they were
held to be entitled to relief under section 8.
Having referred to the relevant provisions of the
Act, it becomes necessary now to state the main findings of the High Court upon which the decision of this
appeal will turn. These findings are-
(1) that tfie sale of Tedlam village, which was
held on the 6th July, 1935, and confirmed on the 6th
March, 19-13, was a good sale;
(2) that by this sale, the title to the Tedi am village
passed to the de'cree-holder, and in hearing the appeal
the High Court was justified in proceeding on the
footing that the judgment-debtors having ceased to be
the owners of Tedlam village after its sale, were not
io~
Sri Ranga
Nilaylun Rama
K•1shna Rao
v.
Kandokori
CJu1llay11nuna
and Anothtr.
Faal Ali J.
814
SUPREME COURT REPORTS
[1950]
hit by clause (D) of the proviso to section 3 of the Act ;
and
(3) that the decree had been satisfied at the date
of the sale and the decree-holder was liable to repay to
the judgment-debtors the full price of the property
which was sold.
The main contentions directed against the conclusions arrived at by the High Court are: firstly, that
they are self-contradictory, because if the sale was an
effective sale on the date it was held or confirmed, the
decree was also ~atisfied on that date and the juflgmentdebtors were no longer entitled to invoke the provisions
of the Madras Act; and secondly, that the view taken
by the learned Judges of the High Court that notwithstanding the appeal against the order ref using to set
aside the sale they could proceed on the footing that
the judgment-debtors had ceased to be the owners of
Tedlam village on the date of the sale was unsound in
law.
.
I will first deal with the second point which appears
to me to require serious consideration. The High
Court has in my opinion rightly proceeded on the
footing that the ownership of Tedlam village would
bring the judgment-flebtors within the mischief of
clause (D} of the proviso to section 3 of the Act, and
would disentitle them to any relief thereunder. This
view was contested before us on behalf of the judgmentdebtors on two grounds :-(1) that the grant in favour
of the ancestor of the judgment-debtors did not comprise a whole inam village and what they owned was
therefore .not an estate under the Madras Estates Land
Act (Madras Act I of 1908) ; 12) that on the date of the
application, the judgment-debtors were not landholders
of village Tedlam because the village was in the possession of a receiver since 1st February, 1937, and the
latter was in law the landholder on the crucial date.
None of these contentions however appears to me to
have any force. The first contention was sought to be
supported by Exhibit P-1 which is a register of inams
and which shows that poramboke or waste lands to the
~xtent of 599 acres had to be deducted from the area
...
S.C.R.
SUPREME COURT REPORTS
SIS
of the inam. The point however has been dealt with
1950
very fully and clearly by the learned Subordinate
s . R
Judge, who has rightly pointed out that it has no force N<l;; • .:'i."...
in view of the Madras Estates Land (Amendment). Act,
Kri~hna &c
1945 [Madras Act No. II of 1945). The second point
v.
"is equally unsubstantial, because it is well settled that
K•ndokori •
the owner of a property does not cease to be its owner Oh•llayamm•
and A.noth~r.
merely because it i::; placed in the hands of a receiver.
The true position is that the receiver represents the
F<Ul Ali J.
real owner whoever he may be, and the true owner does
not by the·mere appointment of a receiver cease to be
a landholder under the Madras Estates Lan!i Act.
I will now revert to the crucial question in the case,
viz., whether the learned Judges of the High Court
were justified in Jaw in deciding the appeal on the
footing that the judgment-(lebtors had ceased to be the
owners of Tedlam village and on that account they
were not hit by clause (D) . of the proviso to section 3
of the Madras Act. At this stage, it will be useful to
refer to certain provisions of the Civil Procedure Code
which directly bear on the question as to when title to
immovable property which is sold in execution of a
decree is deemed to pass to the purchaser. One of the
provisions is Order XXI, rule 92, which provides that
"where no application is made under rule 89, rule 90
or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the
sale, and thereupon the sale shall become absolute.''
The second relevant provision is section 65 which
runs thus:-
"Where immovable property is sold in execution
of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser
from the time when the property is sold and not from
the time when the sale becomes absolute."
In !Jhawani Kunwar v. Mathura Prasad Singh(1) the
quest10n as to when a mortgagee who has purchased
certain villages in execution of the decree acquired title
to the properties purchased by him directly arose for
consideration, and the Privy Council rightly pointed
(11 T.L.B. 40 C•J. S9.
1950
Sri Ranga
Nilayam Rama
Krishna Rao
v.
·
Kandokori
Chellayamma
and Another.
Fasl Ali J.
816
SUPREME COURT REPORTS
[1950)
out that "the sale in execution of the mortgage decree
took effect from the actual date of the sale aod not
from its confirmation." In a simple case, the provision$ cited above should settle the controversy, but, in
the present case, the matter has been complicated on
account of the appeal against the order refusing to set
aside the sale under Order XXI, rule 90. In such a
case, generally speaking, the true position seems to be
that there is no finality until the litigation is finally
determined by the appellate Court. This principle
has been recognized in a number of cases, but it will
be enough to cite Chandramani Shaha v. Anarjan
Bibi('). The headnote of that case runs as follows:-
"Where a Subordinate Judge has disallowed an
application under Order XXI, rule 90, to set aside a
sale in execution, and has made an order under rule 92
(!)confirming the sale, and an appeal from disallowance
has been dismissed by the :fligh Court, the three years'
period provided by the Indian Limitation Act, 1908,
Schedule I, article 180, for an application under Order
XXI, rule 95. by the purchaser for delivery of possession
runs from tbe date of the order on appeal; the High
Court having under the Code of Civil Procedure, 1908,
the same powers as the Subordinate Judge, the 'time
when the sale becomes absolute', for the purpose of
article 180 is when the High Court disposes of the
appeal."
Under article 180 of the Indian Limitation Act, the
period of limitation runs "from the date when the
sale becomes absolute." If we give a narrow and
literal meaning to these words, the period of limita.
tion should be held to run from the date when the
original Court of execution confirms the sale. But,
as was pointed out by the Privy Council, the High
Court as an appellate Court had the same powers as
the trial Court and it is only when the appeal was
dismissed by the High Court that the order of the trial
Court confirming the sale became absolute. Till the
decision of the appellate Court, no finality was attached to the order confirming the sale.
ill l.L.R. 61 Cal, 945,
-
-
•
-
,.. .
S.C.R.
SUPREME COURT REPORTS
Sii
It is clear that in 'this case the same rule would
1960
apply to the order recording satisfaction of the decree
.
and to the order confirming the sale. If the order "
8
1 " RanRga
d.
. f
.
f h
fi
1
d "'ayam ama
recor mg satis action o t e decree was not na an
Krishna Rao
remained an inchoate order until the appeal was
v.
decided, the order confirming the sale would have the
Kandokori
same inchoate character. This position seems to have Chellayamma
f
.
·
and .4.noth~r.
been ully conceded m the statement of thelf case filed
on behalf of the respondents in this Court.
Fazldli J.
It is quite clear that in this case the learned Judges
of the Hii:;-h Court have taken up an inconsistent
position. As I have already stated, they have held,
for the purpose of allowing one of the appeals, that the
judgment.debtors were not hit by clause (D) of the
proviso to section 3 of the Act because they ceased to •
be the owners of Tedlam village at the date of the sale
in 1935. If this conclusion is correct, it must follow
as a matter of logic that the decree was completely
satisfied on the date of the sale, because the sale
fetched a larger amount than what was payable under
the decree an<l the excess amount was deposited by
the decree-holder in Court. The sale and satisfaction
must go together and if finality is to be attached to the
sale it should have been held to attach also to the
order recording satisfaction of the decree. It seems
clear to me that if the decree had ceased to exist, no
relief could be claimed by the judgment-debtors under
the Madras Act. On the other hand, if the appeal had
to be decided on the footing that the order recording
satisfaction of the decree was not final, the same
approach should have been made in regard to the
effect of the sale. It is also clear that if the decree
was satisfied on the date of sale by the application of
the provisions of the Act, the sale could not stand,
because how co'uld the property be sold in execution
of a decree which had been already satisfied. Yet, notwithstanding the fact that notliing was due under the
decree, the High Court has held that the sale was a
good sale and was to stand. The correct approach to
the case would have been to assume for the purpose of
~h~ iiVVev.i~ tha.t neither of the orders passed by the
$18
SUPREME COURT REPORTS
[ 1950J
1000
Subordinate Judge was final.
On that view, the
,. Ron
. appeals to the High Court could not have bt;en decided
.,.
8
1
•
Rga
on the footing that the judgment-debtors had ceased
,,, ayam
iima
I
d
h
f
Krishna Rao to be the owners of Ted am property an were t ere ore
v.
not hit by clause (D) of the proviso to section 3 of the
Ka•doko,;
Madras Act. In my opinion, the judgment of the
Oh•ll•yamma High Court cannot be sustained, and the appeals will
and Another
have to be allowed.
li'••I Ali J.
I will now deal very briefly with two preliminary
objections raised on behalf of the respondents. The
first objection is that the application for leave to
appeal to his Majesty in Council against the order of
the High Court was barred by limitation, inasmuch as
the reasons stated in the affidavit filed by the appel-
,. ]ant in the High Court in support of his application
for excusing delay do not constitute sufficient reason
within the meaning of section 5 of the Limitation Act.
The answer to this objection will be found in the facts
which have been already narrated. The delay was
caused mainly by reason of the review of the order of
the High Court and the High Court considered that
there was sufficient reason for condoning the delay.
This Court cannot override the discretion exercised by
the High Court and the matter cannot be reopened in
these appeals. 1he second objection is based on the
fact that the decree-holder was given a choice by the
High Court to elect whether he would deposit the
purchase money . or have the sale set aside, and his
counsel told the learned Judges on the 15th November,
1946, that his client wished to retain- the property
which he had purchased and pay the purchase money
in cash. It is contended that in view of this statement it was not open to the appellant to contend that
he need not pay any amount to the judgment- debtors.
This objection also is entirely devoid of any substance,
because there is nothing on record to show that the
appellant has consented to be bound by the order of
the High Court and waived his right to appeal against
it by reason of the election.
The learned counsel for the respondents also contended that the sale should have been set aside by the
•
S.C.R.
SUPREME COURT REPORTS
819
High Court because the permissi0n given to the decree.
19;0
holder on the 16th February, 1934, to bid and set off
8 . Ii
the decretal am?unt against th~ purchase price was con- N.z:;.,:n;:,..
fined to an earher sale and did not extend to the sale Krishna Rao
which took place on the 16th March, 1935, after the
v.
upset price which had been originally fixed was
Kandokori
reduced. Personally, I am inclined to hold that the Chellayamma
· ·
·
b
and Another.
perm1ss10n· covered the sale m question, ut in any
case it is difficult to hold on the facts stated that
Fa•l Ali J.
there was any such material. irreg11Jarity as would
vitiate the sale. The precise argument which is put
forward here was advanced in the Courts below but
it did not find favour either with the Subordinate
Judge or with the High Court.
Besides, the respondents cannot raise the point in these appeals because
they have filed no appeal against the order of the
High Court upholding the sale,
In these circumstances, I would al!o\v the appeals,
set aside the orders of the High Court and restore the
order of the learned Subordinate Judge. There will
however be no order as to costs in these appeals.
MUKHERJEA J.-I concur in the judgment just now Mukherj•a .1
delivered by my learned brother, Fazl Ali J., and
there is nothing further which I can usefully add.
CHANDRASEKHARA AIYAR ].-The facts which havechandrosekhara
given rise to these appeafs and the questions for
Aiyar J.
decision have been stated in the judgment just now
pronounced by my learned brother Faz! Ali ]. I wish
to add only a few words on the main contention
advanced for the respondents by their learned
Advocate, Mr. V. Rangachari.
If by reason of the confirmation of sale and satisfaction of the decree having been entered up, the title
to the village had passed indefeasibly to the decreeholder, there was no longer any decree or decree debt
to be scaled down. If, however, the title did not pass,
because it was still open to the respondents to attack
the Court sale under Order XXI, rule 90, they were
landholders of the villa~e and, as such, they would
820
SUPREME COURT REPORTS
[1950]
t9so
come within the scope of proviso (D) to section 3 of the
.--
Madras Agriculturists' Relief Act, 1938, which enacts
8" Ra•Rga
that a landholder who holds a village paying more than
Ndayam
una
OO
·
• d · ·
· lt ·
Kri•h•• Rao Rs. 1
as qmt rent or JO I 1s not an agncu unst
v.
within the meaning of the Act.
Kandokori
The apparent inconsistency in the view taken by
Oh•llayamma the Hieh Court was recognised, if not conceded, by the
and Another.
•,
learned counsel. In one view, there was no· longer any
Ohandrasekh.ra decree in respect of which the Agriculturists' Relief Act
Aiyar J.
could operate; and in £he other view, the respondents
could not take advantage of the Act, as their ownership
of the village precluded them. Faced with this dilemma,
Mr. Rangachari urged a somewhat ingenious argument.
He contended that though the title passed to the
decree.holder on the confirmation of sale and became
vested in him from the date of the sale, the respodents
could still be regarded as having an interest in the
village, as the sale was open or liable to challenge and
the title of the decree-holder was inchoate or incomplete.
There is, however, really no support for this position.
On confirmation, the title of the decree-holder became
absolute or complete. If the sale was set aside, the
title would re vest in the judgment-debtor. There is
nothing like an equitable title in the decree-holder
which could be recognised for certain purposes and not
recognised for others.
Under the Madras Act; "agriculturist" means "a
person who has a saleable interest in any agricultural
or horticultural land or one who holds interest in such
land under a landholder as a tenant, ryot or undertenure.holder." Section 10, sub-clause (i) of the Act
provides that the right conferrerl. on an agriculturist
to have a debt scaled down will not apply to any
person who, though an " agriculturist" as defined in
the Act, dirl not on 1-10-1937 hoU an interest in or a
lease or sub-lease of any land. After the sale in 1935,
the only interest which the judgment-debtors had in
the village was to have the sale set aside, under the
relevant provisions of the Civil Procedure Code. This
interest is not the interest contemplated by section 3,
s11b-clause (ii) (a) & (b) of the 1\ct which speaks of a
•
•
..
S.C.R.
SUPREME COURT REPORTS
821
saleable interest or interest as a tenant, ryot or under1950
tenure holder.
S.ri Rt'lnga
I agree in the conclusion reached by my learned N.tayam Rama
brother.
Kdshna Rao
Appeals allowed.
Agent for the appellant: M .S. Krishnamoorthi Sastri.
Agent for the respondents: M.S.K. Aiyangar.
MOHINDEI<. SINGH
v.
THE STATE
[SAIYID FAZL Au, MuKHERJEA and
(HANDRASEKHARA AIYAR JJ.J
Criminal trial-Jfiirder--I11juries ca.'l,tSed by lethal 1l'eapo1zsDu.ty of p1·oserution·-Ini1Jortance of c.rpert evidence-Duty to prove
whufe case-Evidence 1v.1.ntin'/ o,i mrttPrial point-Inipropriety of
contJirtion-Proof of :ilibi-St,inilnrd of proof-S'llpreme
Co~trt
Criminal appea,l-Interfcrcn::e-Practicp_.
In :t case where death is due to injuries or woun1ls caused by
a leth:tl weapon, it has always been considered to be the duty of
the prosecution to pr JVC by Expert cvii!ence th at it 'vas like]y or
at least possible for the injuries to have been caused with the
weapon V•tith \:vhich, and in the manner in which, they are
allegerl to have been caused.
Where in a case of n1urder, the prosecut!on case was that
the accuser] shot the deceased with a gun, but it appeared likely
that the injuries on the deceased were inflicted by a rifle and
there was no evidence of a duly qualified expert to prove that tho
injuries were caused by a gun, :tnd the nature of the irijuries,vas
also such that the shots must have been fired by more than one
person and not by one person only, and. the prosecLio:i hafl no
evidence to sho\V that another person a!Ho shot, and the High
Court, though realising that thel'e was thuq :t gap in the prosecution evidence, convicted the accusec.l placing reliance on the
oral evidence of 3 wiGnesses which was not disinterested:
Held, that the present case fell w'thin the rule laid down
in Pritam Sin1h v. Th• State ([1950] 8.0.R. 45:3) iuasmuch as the
appellant had been convicted notwithstaniing the fa,t
that
evidence '\Vas wo.nting on a most materi'.11 parG of the prosecution
case, and the conviction could not therefore be upheld,
10~
v.
Kandrikori
Ghtllayanima
and Anothe,..
1950
Oct, 17,