Neelakantan Velu v. Gheervarghese Koruthu — 1959 DIGILAW 315 (KER)

Judgment :- 1. The first defendant in O. S. No. 925 of 1118, District Munsiff's Court, Quilon, is the appellant in the second appeal and also the petitioner in the Civil Revision Petition. The first defendant appears to have executed an agreement to sell the suit properties in favour of the plaintiff and the agreement is evidenced by a document dated 10-3-1118. The sale consideration was fixed in the sum of Rs. 1200 and Rs. 200 was paid as advance on the date of the agreement and the balance sum of Rs. 1000/- was to be paid on or before 10-9-1118 when the document of sale is to be executed by the defendant. As, according to the plaintiff, the first defendant did not execute the conveyance in his favour, he instituted O. S. No. 925 of 1188 in the court of the District Munsiff of Quilon for specific performance of the agreement dated 10-3-1118 and the plaintiff also deposited in court the sum of Rs. 1000/- being the balance consideration payable for the sale. There was a decree for specific performance passed by the trial court. The matter was taken up in appeal and the then. Travancore High Court by its decree dated 6-3-1124 confirmed the decree for specific performance granted by the trial court in favour of the plaintiff. After the other formalities for having a conveyance executed were gone through, ultimately on 24-2-1925 the trial court executed the conveyance in favour of the plaintiff. 2. In pursuance of the conveyance executed by the court in favour of the plaintiff the plaintiff also appears to have obtained delivery of most of the items comprised in the sale deed. 3. After the coming into force of the Kerala Agriculturists Debt Relief Act - Act XXXI of 1958 - the first defendant filed on 24-3-1959, C.M.P. No. 3905 of '59 under the provisions of sub-section (3) of S.9 of the said Act. The allegations were that the document of sale of the immovable property in favour of the plaintiff is really a transaction of a debt and that he is entitled to re-open the same and claim the necessary relief afforded to persons like him under the provisions of the said Act. The allegations were that the document of sale of the immovable property in favour of the plaintiff is really a transaction of a debt and that he is entitled to re-open the same and claim the necessary relief afforded to persons like him under the provisions of the said Act. The application was naturally opposed by the plaintiff on the ground that the provisions of the said Act and in particular the provisions of S.9, sub-section (3) under which relief was claimed did not apply to a transaction like this. The main contention was that the document of sale executed in his favour is really in pursuance of a decree passed by the court and S.9 does not contemplate the re-opening of decrees. Objection was also taken that the first defendant is not an agriculturist and that he cannot be considered to be a party to the sale deed executed by the court in favour of the plaintiff. The obstructive tactics of the first defendant and the several attempts made by him to defeat the rights of the plaintiff were also mentioned in the objections raised on behalf of the plaintiff. 4. After filing the main application, namely, C.M.P. No. 3905 of 1959, the first defendant filed on 30-3-1959 another application, namely C.M. P. No. 3967 of 1959, in the main application. In C.M. P. No. 3967 of 1959 the first defendant alleged that he has already filed an application C. M. P. No. 3905 of 1959, claiming reliefs under Kerala Act XXXI of 1958 and in consequence he prayed for redelivery of the items which have been already delivered over to the plaintiff and also asked for stay of delivery of the remaining items for which the plaintiff was already taking steps. Again, this application was also opposed on the ground that the first defendant was not entitled to any reliefs under the Act and therefore he was not also entitled to claim any relief in this interlocutory application also. While the main application, C.M.P. No. 3905 of 1959, was pending, C.M.P. 3967 of 1959 was taken up for disposal by the learned District Munsiff. While the main application, C.M.P. No. 3905 of 1959, was pending, C.M.P. 3967 of 1959 was taken up for disposal by the learned District Munsiff. The learned District Munsiff was of the view that S.9 (3) will apply only to existing transactions, that the said section does not apply when a transaction has ripened into a decree and that there is no provision in S.9 (3) giving a right to a debtor to have a decree passed by the court reopened. After referring to the conduct of the first defendant in certain other matters, the trial court was of the view that the petition under Act XXXI of 1958 is filed as a last resort on the eve of delivery proceedings. The learned District Munsiff again reiterates his view that S.9 (3) does not apply to cases which have ripened into a decree and that there is no power given under S.9 of the Act to reopen decrees already passed. In this view, the trial court dismissed C. M. P. No. 3967 of 1959. It may be stated at this stage that though this application contained two prayers, namely, (a) for staying further delivery of property and (b) for directing the plaintiff decree-holder to redeliver the properties which he had already taken possession of, it is seen from the order of the learned District Munsiff that the first defendant pressed only the prayer for stay of delivery of the items not delivered so far. There was an appeal by the first defendant before the learned Distract Judge of Quilon. The learned District Judge took a slightly different view but agreed with the order of the learned District Munsiff in dismissing the application. The view of the learned judge is: "The Section evidently does not apply to the facts of the present case, because here the transaction was entered into long before the 1st of January, 1946." This gives the impression that according to the learned judge the transaction of sale in this case is the agreement of sale dated 10-3-1118. The learned judge was not prepared to accept the contention of the first defendant that the sale deed executed under orders of court is also to be taken as a "transaction" for the purpose of applying the provisions of the Act. The learned judge was not prepared to accept the contention of the first defendant that the sale deed executed under orders of court is also to be taken as a "transaction" for the purpose of applying the provisions of the Act. This is clear from the observation of the learned judge that the sale in this case was effected as a step in execution of the decree and not on the volition of the parties. Again, the learned District Judge is of the view that the first defendant is not a party to the sale deed and, therefore, he cannot claim relief on the basis of being a party to a transaction as contemplated under S.9(3). Again the learned judge observes that the agreement to sell dated 10-3-1118 must be taken as the transaction and it is that transaction that has ultimately resulted into a decree and in execution of such a decree the sale deed was got executed at the instance of the court. On this reasoning the learned judge rejected the contention of the first defendant that the sale deed executed by the court should be taken as the transaction contemplated under S.9 (3) of the Act. Thus the learned judge confirmed the order of dismissal of the said application passed by the trial court. These orders of the learned District Munsiff and the learned District Judge came up to this court in S. A. No. 603 of 1.959 at the instance of the first defendant. The said second appeal came up for hearing before me on 6th July 1959. In view of the fact that the main application claiming relief under the provisions of Act XXXI of 1958, namely C. M. P. No. 3905 of 1959 was still pending adjudication in the trial Court I was of the view that both parties must have a full opportunity to place their case regarding the provisions of the Act and the applicability of the provisions of the Act to the present proceedings. I was also of the view that the question of the availability of relief to the first defendant has come up only incidentally before the two courts in the stay application filed by the first defendant, namely, C. M. P. No. 3967 of 1959. 5. I was also of the view that the question of the availability of relief to the first defendant has come up only incidentally before the two courts in the stay application filed by the first defendant, namely, C. M. P. No. 3967 of 1959. 5. Therefore, in the presence of the counsel on both sides I passed an order on 6th July, 1959 in the said second appeal directing the trial court to take up C. M. P. No, 3905 of 1959 and to hear arguments only on the preliminary point as to whether the petitioner therein is entitled to invoke the provisions of the Act XXXI of 1958. I have also indicated the time within which a decision on this preliminary point is to be given. A further direction was also given that after a finding was so recorded on that preliminary point, the trial court was to adjourn the proceedings for some time to enable the party who may be aggrieved by the order to come up to this court in revision. I had also directed that a civil revision petition as and when filed is to be posted immediately along with this second appeal and accordingly I adjourned the further hearing of the second appeal. 6. In consequence of this order passed by me in the course of the hearing of the second appeal, the trial court took up for disposal C. M. P. No. 3905 of 1959 filed by the first defendant claiming reliefs under the provisions of Act XXXI of 1958. The trial court after hearing all parties has now passed an order on 17th August, 1959 holding that the first defendant is not entitled to invoke the provisions of Act XXXI of 1158. It has not passed any final orders disposing of the application itself and that is quite in accordance with the directions given by me asking the trial court only to record a finding on the applicability of the Act as a preliminary point. It is against this order of the learned District Munsiff that the first defendant has filed C. R. P. No. 693 of 1959. The trial court is of the view that in order to invoke the provisions of S.1 (3) there must be a transaction by an agriculturist on or after 1st January 1146. It is against this order of the learned District Munsiff that the first defendant has filed C. R. P. No. 693 of 1959. The trial court is of the view that in order to invoke the provisions of S.1 (3) there must be a transaction by an agriculturist on or after 1st January 1146. In this view the trial court held that S.1 (3) is not applicable to Ext. D-1, namely, the agreement of sale dated 10-3-1118. 7. Regarding the document of sale executed on 24-2-1125 in favour of the plaintiff by the court, the view of the trial court is that the suit for specific performance and also the deposit of the balance sum of Rs. 1000/- by the plaintiff were both long before 1-1-1946 and it is also the view of the trial court that the plaintiff became entitled to the plaint property before 1-9-1946. Again, it is also the view of the trial court that the first defendant cannot be said to be a party to the sale deed executed on 24-2-1925 by the court. Again the learned Munsiff goes back to the view expressed by him in his order dated 4th April, 1959 and passed in C.M.P.No.3967 of 1959 that the proceedings have resulted in this case in a decree and S.9 (3) does not contemplate the re-opening of such decrees passed by the court and it follows by this reasoning that the sale deed of 1125 was executed in execution of a decree passed, in this case. Ultimately it came to the conclusion that neither the agreement of sale of 10-3-1118 nor the sale deed dated 24-2-1125 executed in execution of a decree can be considered to be transactions within the purview of S.9 of the Act. On this reasoning the learned District Munsiff recorded a finding that the first defendant is not entitled to invoke the provisions of Act XXXI of 1958. The main question as to whether the first defendant is entitled to invoke relief under the provisions of Act XXXI of 1958 has been decided by the trial court and directly falls to be considered again in the C.R.P. The proceedings which have come up in the second appeal arose, as mentioned earlier, out of an interlocutory application filed by the first defendant pending decision in the main application for relief under the Act filed by him. Therefore, the question that arises is whether the view of the learned District Munsiff as also the view of the two subordinate courts in the second appeal as regards the non-availability of relief to the first defendant under the provisions of Act XXXI of 1958 are correct or not. 8. Mr. P. Govindan Nair appearing for the first defendant in both these matters contended that both the subordinate courts have failed to realise significance and legal effect of a document executed by the court in a suit for specific performance. According to the learned counsel, the provisions in the Code of Civil Procedure, namely, Order XXI, R.32 & 34, read with R.317 & 318 of the Travancore-Cochin Civil Rules of Practice, clearly lay down the legal effect of a document executed by the court in decrees passed by the court for specific performance. The learned counsel contended that Order XXI R.34 sub-rule 5 clearly gives an indication that the execution of a document by the court in the manner provided therein is to have the same effect as the execution of a document by the party ordered to execute the same. He has also drawn my attention to the forms provided in the Civil Rules of Practice which also show that the court in those circumstances is to sign in the name of the party directed to execute the instrument and also in its own name. After relying upon the provisions of Order XXI, R.32 and sub-rules in R.34 and also the rules in the Civil Rules of Practice, the learned counsel referred to the several wordings in the document of sale itself. The document, according to the learned counsel, has been executed in accordance with the directions contained in the Code of Civil Procedure read with the Civil Rules of Practice. 9. The learned counsel also contended that the necessary ingredients under S.9 (3) of Act XXXI of 1958 are (a) the transaction must have been entered into on or after 1st January, 1946; (b) it must purport to be a sale of immovable property; (c) a party to the transaction is given the right to plead, adduce evidence and prove that the transaction is really a debt; and (d) that the party so pleading must be an agriculturist. In this case the question whether the first defendant is an agriculturist or not has not been gone into. In this case the question whether the first defendant is an agriculturist or not has not been gone into. According to the learned counsel, the transaction in this case purporting to be a sale of immovable property is a sale executed by the court on 24-2-1125 corresponding to 11-10-1949. That is clearly after the 1st January 1946 as mentioned in the section. The learned counsel also contended that in the manner in which the document has been executed the first defendant must be considered to be a party to the transaction of sale executed on 24-2-1125. 10. Therefore, according to the learned counsel, the first defendant is entitled to maintain an application under S.9 (3) and have an opportunity of pleading that the transaction is really a debt. As to what evidence & proof the first defendant will be able to place before court to show that the transaction which purports to be a sale is really a transaction of a debt does not arise at present because those points have not been gone into and the first defendant has not as yet had an opportunity of placing the necessary materials in support of this plea. 11. The learned counsel contended that the view of the lower court that this is really an attempt to reopen a decree passed by a court and that S.9 (3) does not contemplate reopening of decrees is based upon a misconception of the scope of the provisions of S.9 [3] of the Act. The right that is given to a party under S.9 [3] is to plead, adduce evidence and prove that the transaction is really a debt. It does not exclude from its operation transactions that may be the ultimate result of a decree passed by a court. S.9, according to the learned counsel, is worded in very wide terms and if a person is able to satisfy the court that he comes within the ambit of S.9 [3], he is entitled to have the benefit of the same notwithstanding the fact that the transaction in this case is one executed by the court in pursuance of a decree passed in a suit for specific performance. The learned counsel has also placed before me a decision of the Allahabad High Court and a decision of the Calcutta High Court which, according to him, lays down the legal effect of a document executed by the court in pursuance of decrees passed for specific performance. 12. The learned counsel also criticised the view of the lower court that the plaintiff has become entitled to the property even before 1-1-1946. The section itself is clear that it refers to a completed transaction of sale and not to an agreement of sale as has been wrongly understood by the lower court. The other reasons given by the subordinate courts in the second appeal and also by the learned Munsiff in the (Civil Revision Petition are (criticised by Mr. Govindan Nair. 13. On the other hand, Mr. T.S. Krishnamurthi Iyer, learned counsel appearing for the plaintiff-respondent in both matters, has contended that the view taken by all the courts about the non-availability of relief to the first defendant under the provisions of Act XXXI of 1958 is perfectly correct. According to the learned counsel, there are various sections of the Act, especially S.4, 5, 6, 7 & 8, which specifically relate to cases where even decrees have been passed. Again, S.22 deals specifically with rights given to re-open sales which have taken place in execution of any decree. Therefore, the learned counsel (contended that having made such provisions in the other parts of the Act regarding proceedings connected with decrees, S.9 is significantly silent about any right to the parties regarding decrees. Therefore, according to the learned counsel, S.9 cannot be intended by the legislature as giving a right to a party to re-open transactions covered by decrees as in the present case and he has supported the views expressed by the lower courts. 14. Again, the learned counsel contended that whatever may be the actual result of a sale deed executed by the court by virtue of the powers vested in it under the Code or Civil Procedure or the Civil Rules of Practice, these matters have no bearing at all when the clear wordings in a statute have to be interpreted. 14. Again, the learned counsel contended that whatever may be the actual result of a sale deed executed by the court by virtue of the powers vested in it under the Code or Civil Procedure or the Civil Rules of Practice, these matters have no bearing at all when the clear wordings in a statute have to be interpreted. Sub-section [3] of S.9, according to the learned counsel, is very clear and it categorically lays down that it is only "a party to the transaction" that may plead, adduce evidence and prove that the transaction is really a debt. In this case the utmost that could be said is that the first defendant is a constructive party to the sale deed executed by the court and that such a constructive party is not contemplated by the legislature under sub-S. 3 of S.9 of the Act. 15. Again the learned counsel contended that the court when it executed sale deed on 24-2-1125 in favour of his client did not intend to execute anything other than a sale deed. It is a sale deed executed by the court as such and therefore, how, asks Mr. Krishnamurthy Iyer, can a person in the position of the first defendant come up to the court and plead that when the court executed the sale deed it has not executed it as a sale deed but really as a transaction of debt. An interpretation favouring the maintainability of an application by a party like the first defendant in this case will, according to Mr. Krishnamurthi Iyer, be doing violence to the clear language of the provisions contained in sub-S. [3] of S.9. 16. The learned counsel further contended that sub-section [3] of S.9 will apply only to cases where possession of the entire subject-matter of the sale has also been given to the purchaser namely, the plaintiff in this case. Admittedly, some items of the properties have not been given possession of to the plaintiff and there is a clear direction in the judgment of the learned District Munsiff in O. S. No. 925 of 1118 to the effect that the plaintiff will recover possession of the properties from the first defendant through court. Granting relief to a person like the first defendant in this case will be really indirectly reopening the decree passed by the court. 17. Granting relief to a person like the first defendant in this case will be really indirectly reopening the decree passed by the court. 17. Therefore, it will be seen that the main point of Mr. T. S. Krishnamurthi Iyer, learned counsel for the plaintiff respondent is that S.9 (3) of the Act, - Kerala Act XXXI of 1958 - applies only to cases where a sale deed has been actually executed by an agriculturist as such. The question is whether this interpretation sought to be placed upon the section by the learned counsel for the respondent can be accepted. Before I go to the relevant provisions of the Code of Civil Procedure & the civil Rules of Practice regarding the execution of documents by courts in pursuance of a decree for specific performance, it is desirable that I advert to some of the salient provisions of the Act - Kerala Act XXXI of 1958-in order to understand the general scheme of the legislation. 18. The term" "Agriculturist" has been defined in clause (a) of S.2 of the Act. Again Cl. (c) of S.2 defines a 'debt'. S.4 of the Act deals with payment of a debt in instalments and according to that section notwithstanding anything contained in any law or contract or any decree or order by a court, and subject to the provisions of sub-section (3) of S.4 any debt may be discharged in the manner specified in sub-section (2). Then S.5 deals with the calculation of interest in the case of a debt. The method of calculation is given therein notwithstanding anything contained in any law, contract, decree or order of court to the contrary. Again, S.6 of the Act deals with the nature of appropriation of a debt. S.7 specifically deals with amendment of certain decrees passed for payment of a debt. 19. S.8 provides for any debtor or creditor making an application to the court for an order fixing the amount payable under S.4. Sub-section 2 of S.8 provides for the forum where such an application is to be made, namely, if there is a decree the application is to be made to the court which passed the decree and if not covered by a decree the application is to be made to the court which is competent to pass a decree for the recovery of the debt. I will advert to S.9 a little latter after noting the other provisions of the Act. S.22 provides for applications being made to set aside sale of immovable property in execution of any decree or under the provisions of the Revenue Recovery Act. S.23 provides for deeming any transaction to be a mortgage where under a sale deed in respect of immovable property there is provision to re-purchase the property within any stipulated period on payment of a specified amount and such period has not expired at the commencement of the Act. This power to deem it as a mortgage is given notwithstanding any law or contract to the contrary, Mr. Krishnamoorthi Iyer relied upon S.4 to 8 and S.22 to show that the Act clearly makes provision for cases where a decree also has to be re-opened and in as much as no such provision is to be found in S.9, the provisions of the latter section cannot be invoked to reopen transactions in pursuance of decrees passed for specific performance. I can deal with that argument even at this stage. Debt, as already mentioned, has been defined in S.2, clause (c) of the Act. S.4 to 8, in my opinion deal only with cases where the transaction is admittedly a debt and there is no dispute at all about the nature of the transaction as such. Therefore, they apply to clear cases of debts either covered by contract, decree or order of court and these sections provide for either the manner of discharge of the debt or for the calculation of interest or for the manner of adjustment or for the amendment of decrees passed in respect of those debts. S.8 also gives a right to a debtor and creditor to apply to the court for fixing the amount payable under S.4 and S.4, as mentioned by me earlier, deals only with a case of a debt. S.4 to 8 clearly take in only transactions in the nature of debts about which there is no controversy whatever. The only controversy that could arise between the parties regarding the debts as such is as to how exactly the rights of parties are to be worked out regarding the payment of that under the provisions of the Act. 20. Again. S.23, in my opinion, will not assist Mr. The only controversy that could arise between the parties regarding the debts as such is as to how exactly the rights of parties are to be worked out regarding the payment of that under the provisions of the Act. 20. Again. S.23, in my opinion, will not assist Mr. Krishnamoorthi Iyer in his contention to show that S.9 has no application to cases of decrees. S.23 is only an aid as to how exactly a sale deed containing the clause mentioned in that section is to be construed and there is nothing in that section which will throw any light regarding the interpretation of S.9 of the Act. 21. Again, S.22 of the Act deals with cases of sales of immovable property which had taken place in execution of any decree or under the provisions of the Revenue Recovery Act for the recovery of debt. The benefit of the section can be invoked provided the sale has taken place on or after 1st November 1956 and to cases of sales taking place before 1st November 1956 but possession of the property has not actually passed before 20th November 1957 from the judgement debtor to the purchaser. This is another type of relief given to agriculturist debtors whose property had been sold under decree of court or under the provisions of the Revenue Recovery Act. The section itself is clear that the sale in execution of the decree or under the Revenue Recovery Act is for the recovery of a debt. That again, in my opinion, deals only with a case of a debt falling within the definition of a "debt as mentioned in the Act. 22. These various sections relied upon by Mr. Krishnamoorthi Iyer will not in any way enable a court to come to the conclusion that S.9 is not intended to apply to cases of a transaction which is the result of a decree in particular proceedings. 23. As I will show presently, in my opinion, S.9 is of wider ambit and scope and it gives two types of relief to the two categories of persons mentioned in S.9, clause (1) and clause (3) respectively. 23. As I will show presently, in my opinion, S.9 is of wider ambit and scope and it gives two types of relief to the two categories of persons mentioned in S.9, clause (1) and clause (3) respectively. S.9 of the Act is as follows: "9 Right to prove nature of transaction - (1) Notwithstanding anything in the Indian Evidence Act, 1872, or in any other law for the time being in force, any agriculturist may apply to the Court to re-open any subsisting transaction, whether reduced to writing or not, on the ground that it is really a transaction of debt or that the amount mentioned in the transaction is not the actual amount and may plead, adduce evidence and prove such grounds. Thereupon the Court shall ascertain whether the transaction is a debt or the amount mentioned in the transaction is the actual amount of the debt and pass an order in conformity with the other provisions of this Act. "Explanation. In this sub-section, the expression "Court" shall include any officer or authority appointed by the Government to exercise the functions of a Court under this sub-section. [2] An appeal shall lie against any order passed by a Court under sub-section (I) to the Court to which appeals ordinarily lie from the decisions of such court in suits for recovery of debts and where the order is passed by any office or authority appointed to exercise the functions of a Court, the appeal shall lie to such other authority notified by the Government in that behalf, and the order passed in appeal shall be final. (3) Notwithstanding anything in the Indian Evidence Act, 1872, in the case of any transaction "entered into on or after 1st January 1946 and purporting to be a sale of immovable property or a lease of usufructs, any agriculturist who is a party to the transaction may plead, adduce evidence and prove that the transaction is really a debt and thereupon the amount advanced shall be deemed to be the principal of the debt and the income from the property or the value of the usufructs, as the case may be, shall be appropriated towards interest calculated at five percent per annum on the principal and the balance, if any towards the principal. The amount, if any, outstanding after such appropriation together with the value of improvements, if any, effected by the creditor shall be paid in accordance with the provisions of this Act and when such amount has been wholly paid the property shall be reconveyed to the agriculturist debtor. provided that this sub section shall not affect the rights of bona fide alienees of the creditor deriving rights before 20th November 1957". 24. It will be seen that under sub-section (1) of S.9, any agriculturist may apply for reopening any subsisting transaction on the ground that it is really a transaction of debt and liberty also is given to show that the amount mentioned in the transaction is not the actual amount and right is given to plead, adduce evidence and prove such grounds. There also power is given to the court to ascertain whether the transaction is a debt or the amount mentioned in the transaction is the actual amount of the debt and it has got jurisdiction to pass an order in conformity with the other provisions of this Act. Having made a general provision in sub-section (1) of S.9 giving a right to the agriculturist to reopen any subsisting transaction, there is a special right given under sub-section (3) of S.9 in respect of any transaction entered into on or after 1st January 1946 and the transaction must purport to be a sale of immovable property or a lease of usufructs. If at all, the first defendant in this case can claim relief only under sub-section 3 of S.9. The right given under sub-section 3 is to an agriculturist who is a party to the transaction to show that a transaction purporting to be a sale of immovable property or a lease of usufructs is really a debt and if this contention is accepted certain other consequences will follow as mentioned in that sub-section. 25. Both sub-sections (1) and (2) of S.9 give absolute right to the parties mentioned therein to plead, adduce evidence & prove that the transaction is really a debt and that also notwithstanding anything in the Indian Evidence Act, 1872. The only difference between S.9, sub-section (1) and S.9, sub-section (3) lies in the fact that S.9 (1) refers also to "any other law for the time being in force" whereas that clause is absent in S.9 (3). The only difference between S.9, sub-section (1) and S.9, sub-section (3) lies in the fact that S.9 (1) refers also to "any other law for the time being in force" whereas that clause is absent in S.9 (3). Such a right overriding the provisions of the Indian Evidence Act, 1872, so far as I could gather, is given in four instances in this Act. In S.2, clause (1) of the Act the term "Sambalapattamdar," "Coolypattamdar", "Sambalachittudar" and licensee are defined. In the explanation to the said sub-section it is stated that notwithstanding anything in the Indian Evidence Act, 1872, or in any other law for the time being in force, a person though he is described as an agent or servant in a document evidencing the contract for the cultivation of the land may plead, adduce evidence and prove that he is a Sambalapattamdar, Coolipattamdar, Sambalachittudar, or a licensee. The right is given to plead in the manner to the person who is described as an agent or servant in the document evidencing the contract. The provisions of the Indian Evidence Act are again given the go-by both in sub-section (1) and sub-section (3) of S.9. In sub-section (1) of S.9 the right is given to 'any agriculturist'. In sub-section (3) the right is given to "any agriculturist who is a party to the transaction". The last occasion where the provisions of the Indian Evidence Act or any other laws for the time being in force are given the go-by is to be seen in S.25 (e) of the Act. The right is given under clause (e) of S.25 to 'any person interested in any land' 26. It will be noted from the four occasions where these similar expressions are used that the legislature when describing the person to whom such right is given has taken care to use different expressions. We are not concerned with the expression used in S.9 (3) of the Act, namely, "any agriculturist who is a party to the transaction." 27. Therefore, the question resolves itself to this, namely, as to whether the first defendant in this case can be considered to be a party to the transaction of sale dated 24-2-1125. Mr. Krishnamoorthi Iyer submits that the question of intention under S.92 of the Indian Evidence Act assumes great importance when S.9 has to be interpreted. Therefore, the question resolves itself to this, namely, as to whether the first defendant in this case can be considered to be a party to the transaction of sale dated 24-2-1125. Mr. Krishnamoorthi Iyer submits that the question of intention under S.92 of the Indian Evidence Act assumes great importance when S.9 has to be interpreted. According to the learned counsel S.92 puts an embargo upon the admission of oral agreement or settlement "as between the parties to such instrument or their representatives in interest". According to Mr. Krishnamoorthi Iyer the same connotation must also apply to the expression "a party to the transaction" used in sub-section (3) of section Mr. Krishnamoorthi Iyer further contended that no useful purpose can be served by the first defendant attempting to show what the intention of the court was in executing the sale deed dated 25-2-1125. At any rate, when the court executed the document it had no other intention than that of executing a sale deed. Is it open to the first defendant now to show that the court intended to do something else than executing a sale deed? 28. These problems, in my opinion, are totally beside the point. Sub-section 3 of S.9 it should not be forgotten, does not confine itself only to the application of S.92 of the Evidence Act alone; but that section states "notwithstanding anything in the Indian Evidence Act, 1872". Then, as to in what manner the first defendant will be able to establish that the transaction of sale of 24-2-1125 is a transaction of debt is not a matter that arises for consideration now The only question that arises is whether the first defendant can be considered to be "a party to the transaction" within the meaning of that expression used in sub-section 3 of S.9. 29. Mr. Krishnamoorthi Iyer was prepared to accept the position that if the first defendant himself had executed a sale deed after 1st January, 1946, it may be that he is entitled to file an application under S.9, sub-section (3) and also attempt to prove that the transaction is really a debt. But as stated earlier, according to the learned counsel, the position is changed because it is not the first defendant who has executed the sale deed. But as stated earlier, according to the learned counsel, the position is changed because it is not the first defendant who has executed the sale deed. If the first defendant had himself executed the document after 1st January 1946 and if he can admittedly take advantage of the provisions of sub-section (3) of S.9, in my opinion there is absolutely no difficulty in holding that the first defendant can also reopen the transaction of sale dated 24-2-1125, provided he is an agriculturist and he can be considered to be a party to the transaction. On the clear wording of the section the question whether the document is a voluntary transaction or not does not at all arise. Therefore, the whole question again resolves itself as to whether the first defendant can be considered to be a "party to the transaction". The view expressed by the subordinate courts is that when the court has executed a document it cannot be stated that the first defendant is a party to the document. I cannot accept the view expressed by the subordinate courts to the effect that the title in favour of the plaintiff has already vested prior to 1st January. 1946. Sub-section (3) of S.9 in my opinion, when it uses the expression "any transaction entered into on or after 1st January 1946 and purporting to be a sale of immovable property", can only mean a completed transaction of sale. There is no definition of the expression "sale" in Kerala Act XXXI of 1958 and therefore the definition of the word "sale" in S.54 of the Transfer of Property Act will have to be relied upon. According to that definition "sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised". Then S.54 of the Transfer of Property Act also states that in the case of immovable property of the value of Rs. 100/- and upwards or in the case of reversion or other intangible thing transfer can be only by a registered instrument. S.54 also states that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties and that it does not of itself create any interest or charge on such property. 30. S.54 also states that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties and that it does not of itself create any interest or charge on such property. 30. Therefore, it is clear that under S.54 of the Transfer of Property Act a contract of sale will not of itself create any interest or charge on the property. Therefore, it follows that the contention that title in favour of the plaintiff passed even before 1-1-1946 cannot be accepted. The agreement is of 10-3-1118 in this case. Further, S.9 (3) itself finally says that "when such an amount has been wholly paid the property shall be re-conveyed to the Agriculturist debtor". There cannot be a reconveyance by the creditor in favour if of the debtor unless there has been a completed transaction of sale. Therefore, it is clear that sub-section (3) of S.9 when it refers to a transaction purporting to be a sale clearly has in mind a transaction of a completed sale. 31. In order to find out whether the first defendant can be considered to be "a party to the transaction" of sale dated 24-2-1125, it becomes necessary to refer to some of the provisions in the Code of Civil Procedure. The relevant provisions are 0.21, R.32 and 34. Under 0.21 R.32 it is provided that where a party against whom a decree for specific performance of the contract has been passed and has the opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for specific performance of a contract by his detention in the civil prison or by the attachment of his property or both. Again, 0.21, R.32, clause (5) provides where a decree for specific performance of a contract has not been obeyed the court may in lieu of or in addition to all or any of the processes mentioned earlier in that rule, direct that the act required to be done so far as practicable by the decree or some other person appointed by the court at the cost of the judgment-debtor and it also provides that upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and may be recovered as if they were included in the decree. 0.21, R.34 provides for execution of the document in pursuance of the decree for specific performance. 0.21, R.34, sub-rule (1) provides for the decree-holder preparing a draft of the document in accordance with the terms of the decree and to deliver the same to the court. Sub-rule 2 provides for the court causing the service of a notice on the judgment-debtor along with the draft and requiring the judgment-debtor to make his objections, if any, within the time fixed by the court. Sub-rule 3 makes provision for the judgment debtor filing his objections, if any, in writing to the draft and empowers the court to make such order approving or altering the draft as it thinks fit and sub-rule 4 provides for the decree-holder delivering to the court a copy of the draft along with the alterations, if any, made by the court upon a proper stamp paper in case where stamp is required under the provisions of the law for the time being in force and it also provides for the judge or any other officer as may be appointed in this behalf for executing the document so delivered. Sub-rule 5 of R.34 of 0.21 is to the following effect: "The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely: "C. D.. Judge of the Court of (or as the case may be, for A. B., in a suit by E. F. against A. B" and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same." 32. Judge of the Court of (or as the case may be, for A. B., in a suit by E. F. against A. B" and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same." 32. It will be clear from sub-rule 5 extracted above that the document so executed shall have the same effect as the execution of a document by a party ordered to execute the same. Sub-rule 6 also provides for the court or the officer appointed in that behalf for causing the document to be registered as required by law or in cases where the decree-holder desires to have it registered and provision has also been made in the said sub-rule for giving directions for the payment of the necessary expenses for registration. R.317 and 318 of the Rules under the Travancore-Cochin Civil Rules of Practice provide for the manner of execution of deeds by the court. R.317 of the Civil Rules of Practice provides that the decree-holder shall, together with the draft mention in 0.21 R.34 (1) of the Code bring into court a duplicate thereof and two copies of a notice in Form No. 55 and the prescribed court fee stamps for service thereon, and it also provides that one of the said copies shall be annexed to the draft and shall be served on the person directed to execute the document in manner prescribed for service of summons on a defendant to the suit. R.318 of the Civil Rules of Practice, in so far as it relates to the case of execution of a document, states that in the case of a deed the concluding portion shall be in form No. 56, and the judge shall sign in the name of the party directed to execute the document and also in his own name as in the said form and shall affix the seal of the court thereto. This rule read along with the provisions of 0.21 R.34 of the Code referred to above, clearly is to the effect that the party's name also is to be signed by the court. Form 56 of the Civil Rules of Practice also gives the pattern as to how the concluding portion of a deed executed by the judge is to be. Form 56 of the Civil Rules of Practice also gives the pattern as to how the concluding portion of a deed executed by the judge is to be. It will clearly show that the person against whom decree is passed and on whose behalf the document is executed is a party to the document. Similar provisions are also made in the Civil Rules of Practice as obtaining in Madras under R.15] to 153 of the Civil Rules of Practice. R.151 therein states that the procedure prescribed by 0.21. R.34 (1) to R.34 (4) of the Code shall apply to all documents whereof execution by any party has been directed by court. R.152 again provides for the decree-holder furnishing the draft as required by 0.21, R.34 (1) with the necessary copies of notices in form No. 54 and the necessary process fee for service to the defendant. It also provides for service of notice along with the draft on the defendant. R.153 therein states that in the case of a deed, the concluding portion shall be in form No. 55 and that the judge shall sign the name of the party directed to execute the document and his own name as in the said form and shall fix the seal of the court thereon. Form No.55 in Madras is also most identical with form No. 56 incorporated in the Travancore-Cochin Civil Rules of Practice. These clearly show that the defendant is a party to the document and the transaction of sale executed by the court on 24-2-1125 in this case is in accordance with the provisions of the Civil Procedure Code, the Civil Rules of Practice and also the form prescribed therein. It is rather unfortunate that neither the learned District Munsiff nor the learned District Judge has even adverted to the provisions of 0.21, R.32 and R.34 of the Code of Civil Procedure nor to the relevant provisions in the Civil Rules of Practice, and the forms therein. 33. Mr. T.S. Krishnamoorthi Iyer contended that it may be that a document executed by the court may have all the legal incidents and effect of a document executed by a party. That is it may transfer all the title possessed by the judgment debtor in favour of the plaintiff. 33. Mr. T.S. Krishnamoorthi Iyer contended that it may be that a document executed by the court may have all the legal incidents and effect of a document executed by a party. That is it may transfer all the title possessed by the judgment debtor in favour of the plaintiff. But the learned counsel contends, it will not in any way make the defendant "a party to the transaction" in respect of a sale deed executed by the court. I have already mentioned that in the document though executed by the court, the judge signs in the name of the party and also puts his own signature along with the seal of the Court. I am only concerned with the interpretation to be placed on sub-section 3 of S.9 which uses the expression'a party to the transaction'. It cannot certainly be stated that in documents executed by the court in such circumstances the court is a party to the transaction. None else than the judgment-debtor in such circumstances can be considered to be party to the transaction. Mr. P. Govindan Nair, learned counsel for the first defendant petitioner, has also drawn my attention to a decision of the Allahabad High Court and a decision of the Calcutta High Court where the scope of a document executed by the court in pursuance of a decree for specific performance has been considered. The decision of the Allahabad High Court is the one of Iqbal Ahmad and Harries, JJ., reported in Enyat Ullah v. Khalil Ullah (A.I.R.1938 All. 432). The question that arose before the learned judges was as to whether when there is a prohibition against the transfer of a property by a person situated in that case like the judgment debtor against whom a decree for specific performance has been passed, the court can nevertheless execute a document of sale. The prohibition there was contained in Clause (3) of S.7 of the Encumbered Estates Act. In that case when the decree-holder applied to the court for executing a document in his favour, the judgment-debtor objected to the same on the ground that his proprietory rights in the land could not be transferred in view of the provisions of Clause (3) of S.7 of the Encumbered Estates Act. The said contention of the judgment-debtor was accepted by the trial court and the decree-holder's application for execution of a document was rejected. The said contention of the judgment-debtor was accepted by the trial court and the decree-holder's application for execution of a document was rejected. The decree-holder carried the matter in appeal and it appears to have been contended that the title to the property has been already conveyed in his favour when the court passed the decree for specific performance & that execution of a sale deed was only a formality to evidence the transfer of title. In rejecting these contentions the learned judges at page 433 observed as follows: "It is contended that the title to the property covered by the decree was transferred by the decree itself and that the execution of a sale was a mere formality to evidence the transfer of the title by decree. It is therefore urged that there was no question of any transfer being made by the Court. Secondly, it is contended that Cl. (3) merely prohibits transfer by the owner of the property and has no application to a transfer by the court in pursuance of a decree for specific performance of a contract of sale. The arguments advanced on behalf of the decree-holder appear to us to be without substance. A decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer title. That this is so is apparent from the fact in order to get title to the property the decree-holder has to proceed in execution in accordance with the provisions of 0.21 of the Code. So long as the sale deed is not executed in favour of the decree-holder either by the defendant in the suit or by the court the title to the property remains vested in the defendant and till the execution of the sale deed the decree-holder has no right to the possession of the property. It is only the execution of the sale deed that transfers titles to the property. The sale deed executed by a Court in pursuance of a decree for specific performance is a transfer by the Court on behalf of the judgment debtor and it is the title of the judgment-debtor to the property that is transferred by the sale deed executed by the court. The sale deed executed by a Court in pursuance of a decree for specific performance is a transfer by the Court on behalf of the judgment debtor and it is the title of the judgment-debtor to the property that is transferred by the sale deed executed by the court. If the judgment-debtor is precluded from transferring his property by some statutory provision, the court cannot, in violation of that provision, execute a sale deed of the property". After referring to the provisions of the Encumbered Estates Act the learned judge again observed at page 434 as follows: "As the Court was asked to execute the sale deed on behalf of the judgment-debtors, the Court could not ignore the statutory provision just referred to and could not execute the sale deed without the sanction of the Collector" . The learned judges there also observed that it was not necessary for the court in that case to apply for the necessary sanction and it is open to the decree holder to move the Collector for giving the necessary sanction. These observations, in my opinion clearly show that there is nothing that the court does in those circumstances except for and on behalf of the judgment-debtor. In fact these observations clearly show that the fact that there is a decree passed for specific performance does not in any way improve the situation of the decree-holder in such circumstances. The next decision relied upon by Mr. P. Govindan Nair is the decision of Harries, C, J., in Gopinath v. Namai Charan (A.I.R.1951 Calcutta 551). No doubt, the learned judge had to consider the scope of the execution of a document by the court in relation to the provisions of the Bengal Tenancy Act. An attempt appears to have been made in that case to make a distinction between a conveyance executed by the co-sharer as such & a conveyance executed by the Court. The learned judge in rejecting that argument observes as follows at page 552: "In the first place he contended that S.26F, Bengal Tenancy Act, would not apply to this case at all because the conveyance here was conveyance by the Ct. and not by a co-sharer. It is true that in this case the conveyance or deed of sale was executed by the Ct. merely because the defendants had refused to carry out a decree for specific performance. The Ct. and not by a co-sharer. It is true that in this case the conveyance or deed of sale was executed by the Ct. merely because the defendants had refused to carry out a decree for specific performance. The Ct. executed the transfer not as owners of the property as obviously the Ct. had no title at all. The Ct. merely executed the transfer as an agent as it were of the defendant and the transfer is in fact and in law a transfer by the defendant who was a co-sharer. That being so there is no substance in this contention". The learned judge, if I may say so with respect, has very forcibly stated the nature of a document executed by the court in these words: "The transfer is in fact and in law a transfer by the defendant who was co-sharer" I respectfully agree with the observations of the learned judge of the Allahabad High Court and the learned Chief Justice of the Calcutta High Court referred to above. From the various provisions of the Code of Civil Procedure and the Civil Rules of Practice and the principles enunciated by the learned judge extracted above, in my opinion, it clearly follows that the first defendant in this case must be considered to be a party to the transaction of sale dated 24-2-1125. 34. Mr. T. S. Krishnamoorthi Iyer next contended that sub-section (3) of S.9 does not contemplate a constructive party. According to the learned counsel, the first defendant can at the most be considered to be only a constructive party to the sale deed executed by the court on 24-2-1125. This contention need not be considered further by me because apart from the fact that the statute in question makes no such distinction in this case I have also held that the first defendant is a party to the transaction of sale. 35. Mr. T. S. Krishnamoorthi Iyer next contended on the basis of a judgment of the Lahore High Court that even if the first defendant can be considered to be a party he cannot be stated to have executed the document of sale in this case voluntarily. Here again, sub-section 3 of S.9 of the Kerala Act leaves: no such room for an argument like this. But anyhow as Mr. Here again, sub-section 3 of S.9 of the Kerala Act leaves: no such room for an argument like this. But anyhow as Mr. Krishnamoorthi Iyer has referred to the decision of the Lahore High Court reported in Mohammed Wazir v. Fahangiri Mal, (A.I.R.1949 Lahore 72), a decision of Abdul Rashid, C. J., and Cornelius J., I shall consider the scope of the said decision though I am of the view that it has no application to the facts of the present case. The learned judges had to consider a right of pre-emption arising under the provisions of Punjab Pre-emption Act, I of 1913 with special reference to the definition of 'sale' contained in S.3 sub-section (5) of the said Act. It is seen from the definition of 'sale' as contained in the said Act and extracted at Page 75 of the report that "sale" shall include a sale in execution of a decree for money or of an order of a civil, criminal or revenue court or of a revenue officer. The learned judges having in view the definition of 'sale' as contained in the Punjab Pre-emption Act, Act I of 1913, observed at page 76 as follows: "At first sight, it may appear that if a sale is effected in consequence of a decree, it is not taken out of the purview of the Punjab Pre-emption Act unless the decree be one for money, but examination of the provisions of R.32 and 34 of 0.21, Civil P. Code, clearly shows that in a case like the present where an actual conveyance will eventually have to be executed in the plaintiff's favour if he succeeds in obtaining a decree, the expression 'sale' has reference to this conveyance and need not be regarded as meaning either the decree or the decree as executed". Then after referring to sub-rule 5 of R.32 of 0.21, and also to the relevant provisions of R.34 of 0.21, the learned judges observe at page 76 as follows: "These provisions make it plain that a sale effected in consequence of a decree for specific performance such as that claimed in the present suit is entirely different from a voluntary sale, for the purpose of pre-emption. It is in fact an act of the court, as statutory substitute for the person who is in default, and as such acts must be deemed to be performed by order of the Court, the consequent sale is clearly precluded from the mischief of the Punjab Pre-emption Act by virtue of the provisions already cited" 36. In my opinion, these observations of the learned judges of the Lahore High Court relied upon by Mr. Krishnamoorthi Iyer will not assist him in his contention that the first defendant cannot be considered to be a party to the transaction within the meaning of S.9 (3) of Kerala Act, 31 of 1958. The learned judges of the Lahore High Court were considering as to whether a transaction of sale executed by, the court can be considered to be a sale which had been specially defined in the Punjab Pre-emption Act, I of 1913, and in that context the learned judges considered the provisions of R.32 & 34 of 0.21 of the Code of Civil Procedure. After a consideration of all these circumstances the learned judges came to the conclusion that a sale executed by the court in pursuance of a decree passed for specific performance is different from a voluntary sale for the purposes of pre-emption as contemplated by the provisions of the Punjab Pre-emption Act The learned judges had no occasion to consider the case whether the defendant on whose behalf a sale deed was executed can be considered to be party to the transaction or not. In view of the said definition of 'sale' in the said Act that the learned judges had to consider, the learned judges were of the view that the said section will apply only to a voluntary sale executed by a party. 37. No such considerations apply nor are they envisaged in the provisions contained in sub-S. 3 of S.9 of the Kerala Act, Act 31 of 1958. 38. The last contention of Mr. Krishnamoorthi Iyer was that sub-S. 3 of S.9 will apply only to cases where there has been a sale deed executed and possession also has passed to the vendees. In this connection he relied upon the provisions in the latter part of sub-S. (3) where the method of appropriation of the income that may have been received from the property by the purchaser is provided for. In this connection he relied upon the provisions in the latter part of sub-S. (3) where the method of appropriation of the income that may have been received from the property by the purchaser is provided for. In my opinion, there is nothing in the wording of sub-section (3) of S.9 to the effect that the possession of the properties must also have passed as a condition precedent to the applicability of those provisions. The method of adjustment and appropriation provided in sub-section (3) is only if any income from the property has been derived from the vendee. Even otherwise, in this case there is no dispute that a major portion of the property has been already put in possession of the plaintiff in this case. But I am not resting my decision on sub-section 3 on this ground alone because I am satisfied that passing of possession is not necessary before a party could invoke the provisions of sub-section 3 of S.9. Therefore it follows that the order of the learned District Munsiff which is the subject matter of C. R. P. No. 693 of 1959 holding that the application filed by the 1st defendant for relief is not maintainable has to be set aside. The transaction of sale in this case is admittedly after 1st January, 1946 and that condition is satisfied in this case. Again, in my opinion, the 1st defendant is "a party to the transaction" of sale dated 24-2-1125 in favour of the plaintiff. Therefore, that condition also is satisfied. As to whether the 1st defendant is an agriculturist within the definition of that expression under S.2[a] of the Kerala Act. 31 of 1958 is a matter to be gone into by the court in the further proceedings connected with C. M. P. No. 3905 of 1959. The learned District Munsiff will continue the further proceeding in C.M.P. No. 3905 of 1959 according to law and in the light of the observations and the direction contained in this judgment. 39. So far as S. A. No. 603 of 1959 is concerned as stated at the beginning of the judgment that arises out of an application for stay, C. M. P. No. 3967 of 1959, filed by the 1st defendant pending enquiry into the main application C. M. P. No. 3905/1959. Mr. 39. So far as S. A. No. 603 of 1959 is concerned as stated at the beginning of the judgment that arises out of an application for stay, C. M. P. No. 3967 of 1959, filed by the 1st defendant pending enquiry into the main application C. M. P. No. 3905/1959. Mr. Krishnamoothi Iyer, learned counsel appearing for the plaintiff respondent contended that when the two courts below have exercised their discretion and refused to grant stay, this Court should not interfere in second appellate stage. There will be considerable force in this contention of Mr. Krishnamoorthi Iyer if both the courts have rejected C.M. P. No. 3967 of 1959 on the merits and declined to grant stay. But that is not what has happened in this case. Both the courts have dismissed the application for stay filed by the first defendant on the ground that the first defendant's main application C.M. P. No. 3905 of 1959 claiming relief under Kerala Act 31 of 1958 is itself not maintainable. That view has not been accepted by me in the connected C. R. P. where that point directly arose for consideration. Therefore, there has been no decision by the two courts, on the merits of the application for stay filed by the first defendant, namely, C. M. P. No. 3967 of 1959. In view of my order in C.R.P. No. 693 of 1959 holding that the application filed by the first defendant claiming relief under the Act is maintainable provided he satisfies the court that he is an agriculturist also, it follows that the orders of both the subordinate Courts in S. A. No. 603 of 1959 have to be set aside and in consequence C.M.P. No. 3967 of 1959 is directed to be restored back to the file of the learned District Munsiff of Quilon for fresh disposal on the merits of the said application. In the light of my decision in the Civil Revision Petition it is open to both parties to file any supplementary statements, if so advised, in C. M. P. No. 3967 of 1959 within six weeks from to-day. The trial court will pass orders according to law in the said application after hearing all parties. I make it very clear that I express no opinion on the merits in C. M. P. No. 3967 of 1959. The trial court will pass orders according to law in the said application after hearing all parties. I make it very clear that I express no opinion on the merits in C. M. P. No. 3967 of 1959. By my interim order dated 6th July, 1959 passed in S. A. 603 of 1959 and C.M.P. No. 2677 of 1959. I had appointed the first defendant as Receiver of the properties not so far delivered over to the plaintiff decree-holder. He will continue to be the Receiver work under the control and directions of the trial court pending a final decision by that court in C. M. P. No. 3967 of 1959. It is open to the trial court when passing fresh final orders in C. M. P. No. 3967 of 1959 to give suitable directions in this behalf also. 40. In the result, the order dated 17th July, 1959 of the learned District Munsiff of Quilon and passed in C. M. P. No. 3905 of 1959 is set aside and C. R. P. 693 of 1959 is allowed and the learned District Munsiff is directed to continue further proceedings in the said application in the light of the observations contained in this judgment according to law. In consequence of my decision in the civil revision petition the orders of both the subordinate courts in S. A. No. 603 of 1959 are set aside. C. M. P. No. 3967 of 1959 in so far as it relates to stay of delivery of the remaining items alone is directed to be re-heard by the trial court on its merits. There will be no order as to costs in the Second Appeal. The costs in the C. R. P. will abide and be provided for by the trial court when final orders are passed by that court. No leave in S. A.