2008 Supreme(SC) 1592

2008(7) Supreme 326
SUPREME COURT OF INDIA
R.V. Raveendran and Aftab Alam, JJ.
Chinnakarupathal & Ors. — Appellants
versus
A.D. Sundarabai & Ors. — Respondents
Civil Appeal Nos. 5267-69 of 2002
Decided on : 24-10-08

IMPORTANT POINTS
1. The fact that agricultural lands were sold in an auction and that owners of such lands were agriculturists, are not by themselves sufficient to invoke exercise of power under section 23A of Tamil Nadu Agriculturists Relief (Amendment) Act, 1948. The court can set aside a sale of immovable property under said section only if the court is satisfied that applicant is a person entitled to benefits of Act.
2. Section 145 of Civil procedure Code,1908 provides that where any person has furnished any property as security for payment of any money (or for the fulfillment of any condition imposed on any person) under an order of a court in any suit or in any proceedings consequent thereon, such order may be executed in the manner provided in the Code for the execution of decrees, by sale of such property.

Headnote:Tamil Nadu Agriculturists Relief (Amendment) Act, 1948 – Section 23A, 23C – Auction sale – Application under section 23C for setting aside court auction sale – Dismissed by Executing Court – Revision petition – Dismissed by High Court – Appeals thereagainst – Plea of appellant that application was intended to be one under section 23A of Act, but due to a typographical error, provision of law was wrongly mentioned as section 23C – The fact that agricultural lands were sold in an auction and that owners of such lands were agriculturists, are not by themselves sufficient to invoke exercise of power under section 23A of the Act – The court can set aside a sale of immovable property under said section only if the court is satisfied that applicant is a person entitled to benefits of Act – Failure on part of appellants to demonstrate how they were entitled to any of benefits under said Act – Scaling down of debt is permissible only where amount paid or payable by way of principal and interest is more than twice amount of principal – That did not apply in this case –This was not a case of usufructuary mortgage – Nor was any interest payable on any loan – Nor was the claim for any rent payable – Hence appellants held not entitled to benefits of Act – In absence of such satisfaction, question of setting aside auction sale under section 23A of Act did not arise – Auction sales held liable to be confirmed in favour of auction-purchasers – Appeals having no merit dismissed. (Paras 8, 9 & 10)

        Tamil Nadu Agriculturists Relief (Amendment) Act, 1948 – Section 19A – Auction sale – Application under Section 19A for determination of amount to be paid to the decree holders by scaling down the amount under sections 7 and 8 of the Act – Dismissed by Executing Court – Revision petition-Dismissed by High Court – Appeals thereagainst – Section 19A provides for filing an application for the determination of amount of debt due by an agriculturist – But the said section applied only in regard to debts of an agriculturist other than a decree debt-Having regard to the definition of the term ‘decree’, any amount recoverable under section 144 read with section 145 CPC by way of restitution, will also be a decree debt – Held since amount claimed in the execution petition was by way of restitution under section 144 CPC by enforcing the security under section 145 CPC, neither section 19A nor section 23C of the Act was attracted – Hence held that application under section 19A was misconceived and rightly rejected. (Paras 7)

        Civil procedure Code, 1908 – Order 34, Rule 5 read with section 151-Auction sale – Application under Order 34, Rule 5 read with section 151 for fixing the date of depositing the amount found due by the legal representatives of the surety- Dismissed by Executing Court – Revision petition – Dismissed by High Court – Appeals thereagainst-Held application under Rule 5 of Order 34 CPC was misconceived, as proceedings did not relate to a mortgage suit- Section 145 of CPC provides that where any person has furnished any property as security for payment of any money (or for the fulfillment of any condition imposed on any person) under an order of a court in any suit or in any proceedings consequent thereon, such order may be executed in the manner provided in the Code for the execution of decrees, by sale of such property – Consequently, the recovery of the amount due to the defendants was governed by sections 144 and 145 read with provisions of Order 21 CPC – Provisions of Order 34 CPC being inapplicable there was no question of invoking Rule 5 of Order 34 to fix a date for depositing the amount due – Application under Order 34 Rule 5 CPC was rightly rejected. (Para 6)

       Facts of the Case :

        1. Application under section 23C for setting aside court auction sale was filed herein in the instant case. Said application was dismissed by Executing Court. Revision petition thereagainst was dismissed by High Court.

        2. Present Appeals have been filedagainst said order of High Court. Plea of appellant that application was intended to be one under section 23A of Act, but due to a typographical error, provision of law was wrongly mentioned as section 23C.

       Findings of the Court :

        The fact that agricultural lands were sold in an auction and that owners of such lands were agriculturists, are not by themselves sufficient to invoke exercise of power under section 23A of the Act. The court can set aside a sale of immovable property under said section only if the court is satisfied that applicant is a person entitled to benefits of Act. Failure on part of appellants to demonstrate how they were entitled to any of benefits under said Act. Scaling down of debt is permissible only where amount paid or payable by way of principal and interest is more than twice amount of principal. That did not apply in this case.This was not a case of usufructuary mortgage. Nor was any interest payable on any loan. Nor was the claim for any rent payable.Hence appellants held not entitled to benefits of Act. In absence of such satisfaction, question of setting aside auction sale under section 23A of Act did not arise. Auction sales held liable to be confirmed in favour of auction-purchasers. Appeals having no merit were dismissed.

       Result : Appeals dismissed.