Iype Varkey v. Catholic Union Vank Ltd. — 1959 DIGILAW 253 (KER)

Judgment :- 1. The judgment-debtor in 0. S. No. 10/1954 on the file of the Additional District Judge's Court of Parur is the appellant. That suit was decreed against him and in execution of the decree, items 1 and 3 of decree schedule wore sold in court auction on 13 61958 and were purchased by the decree-holder bank. On 14 7 1958 the judgment-debtor put in a petition to have the sale set aside on grounds of material irregularity and fraud in the conduct of the sale. His attempt in that direction proved unsuccessful. However, before the court sale was confirmed, the Kerala Agriculturists' Debt Relief Act, (Act XXXI of 1958) came into force. The judgment-debtor wanted to take advantage of this Act and accordingly on 1411959 he filed a petition for relief under sub-section [3] of S.22 of the Act. The lower court held that the conditions required by S 22 were not satisfied in the present case and that, therefore, the judgment-debtor is not entitled to claim the benefits of Act XXXI of 1958. The petition was accordingly dismissed. The correctness of the view taken by the lower court is challenged in this appeal. 2. It is not disputed that the judgment-debtor-appellant is an agriculturist as defined in Act XXXI of 1958. In order that he may be entitled to have the court sale set aside under sub-section (3) of S.22 of the Act and to get the right to pay the decree-debt in accordance with S.4 and 5 of the Act, the other important conditions to be satisfied are, (1) that the court sale of his immovable properties involved in the suit has not been confirmed, (2) that a petition for setting aside the sale was pending at the commencement of the Act XXXI of 1958, and (3) that the judgment-debtor has deposited the first instalment contemplated by S.4 within the prescribed period. As already pointed out, the court sale in the present case had not been confirmed at the commencement of the Act or even at the time of the filing of the petition by the judgment debtor under S.22 of the Act. The dispute is about the next question whether a petition for setting aside the court sale was pending at the common cement of the Act. The lower court's answer to this question is against the judgment-debtor. 3. The dispute is about the next question whether a petition for setting aside the court sale was pending at the common cement of the Act. The lower court's answer to this question is against the judgment-debtor. 3. The judgment-debtor's petition to set aside the sale was filed on 14 7-1958. This is the identical date on which Act XXXI of 1958 came into force Can it be said that the petition for setting aside the sale was pending at the commencement of the Act? The expression "pending at the commencement of the Act" connotes the idea that the petition should have been filed earlier in point of time than the time of the commencement of the Act and that the petition should not have been disposed of before the commencement of the Act. The exact time when the petition to set aside the sale was filed in court is not known. But the judgment-debtor may be given the benefit of the normal presumption that the petition was presented at the earliest point of time when the business of the court normally commences, i. e., at 11 A.M. Even this presumption can come to the rescue of the judgment-debtor, only if it is found that Act XXXI of 1958 had not commenced or had not come into force earlier than 11 A. M. on 14 71958. The time of the commencement of the Act has to be determined in the light of the relevant provisions of the Travancore-Cochin Interpretation and General Clauses Act (Act VII of 1125) as amended by Act VIII of 1956 and Act III of 1957. In Clause.7 of S.2 of the Act, the word 'commencement' has been defined as follows: "'Commencement' used with reference to an Act shall mean the day on which the Act comes into force". The time of the commencement of an Act has to be determined in accordance with the provision contained in S.3 of the Act. Sub-sections (1) and (2) of S.3 are in the following terms: "[1] Where any Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which the Act is published in the Gazette after it receives the assent of the Raj Pramukh, the Governor, or the President, as the case may be. [2] Unless the contrary is expressed, an Act shall be construed as coming into ope-ration immediately on the expiration of the day preceding its commencement". These provisions are similar to the provisions contained in S.5 of the Central Act, i. e., the General Clauses Act (Act 10 of 1897). The definition of the word 'commencement' is contained in Clause.13 of S.3 of that Act. The Kerala Agriculturists' Debt Relief Act (Act XXXI of 1958) does not specify any particular date for the commencement of the Act. Clause.3 of S.1 merely states that the Act shall come into force at once This means that the Act must be taken to have come into operation on the day on which the Act was published in the State Gazette. The provision in sub-section 1 of S.3 of the Interpretation and General Clauses Act in force in the State is to that effect. Under sub-section 2 of the same section, the Kerala Agriculturists' Debt Relief Act must be taken to have come into operation immediately on the expiration of the day preceding its commencement, i. e., at the commencement of the day on which the Act was published in the State Gazette. The previous day terminated on the midnight of 13- 71958 and, on such termination, the next day commenced. It follows, therefore, that Act XXXI of 1958 must be taken to have commenced or come into operation at that moment. It was only several hours later that the petition of the judgment-debtor in this case, to have the court sale set aside was presented in court. That petition cannot, therefore, be said to have been pending at the commencement of Act XXXI of 1958. Since this essential condition is not satisfied in the present case the judgment-debtor's petition claiming relief under sub-section 3 of S.22 of the Act is unsustainable. He cannot also get relief under sub-section 1 (a) of the same section because he has not made the deposit as required by that sub-section within the prescribed time. The lower court was, therefore, right in dismissing his petition. 4. In the result this appeal fails and it is dismissed with costs. Dismissed.