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1959 DIGILAW 79 (KER)

Balakrishnan Nair v. V. G. Bhaskaran Nair

1959-03-09

VARADARAJA IYENGAR

body1959
Judgment :- 1. This revision is by a decree-holder-auction-purchaser whose sale in execution has been set aside on an application made by the respondent-judgment-debtor in the court below under S.22(3) of the Kerala Agriculturists' Debt Relief Act, 31 of 1958 hereinafter called the Act. 2. The appellant had been conducting a single chitty scheme consisting of four classes of tickets A, B, C and D for various amounts and subject to differing conditions but all terminating uniformly on 15-3-1958. However by a special resolution passed on 10-3-1953, during the course of the Scheme the number of subscribers in the A class was reduced by ten so as to bring about a termination of that class earlier by 20 months. The respondent had taken three tickets respectively of the A, B & C classes, had bid his A and B class tickets and had the decree herein passed against him for defaulted chitty subscriptions under the A & B classes. The sale in execution of the decree had taken place before the Act came into force on 14-7-1958. The respondent's application to set aside the court sale was however pending at date of the Act. Now S.22 of the Act provided for the setting aside of sales of immovable property in certain cases. One of such cases was dealt with under S.22 (3) as follows: "S. 22 (3), Where in respect of any sale of immovable property which has not been confirmed, a petition for setting aside the sale is pending in any court at the commencement of this Act, the agriculturist judgment-debtor shall be entitled to pay the decree debt in accordance with the provisions of S.4 and 5, and on the deposit of the first instalment thereof, the sale shall be set aside. Where the judgment-debtor fails to deposit any of the subsequent instalments, the decree-holder shall be entitled to execute the decree and recover the defaulted instalment or instalments in accordance with the provisions of this Act". In including chitty debtors within the scope of the Act, S.2(c) (x) had provided for an exception as follows : "S. 2 (c)(x). Where the judgment-debtor fails to deposit any of the subsequent instalments, the decree-holder shall be entitled to execute the decree and recover the defaulted instalment or instalments in accordance with the provisions of this Act". In including chitty debtors within the scope of the Act, S.2(c) (x) had provided for an exception as follows : "S. 2 (c)(x). Any liability incurred or arising under a chitty or kuri which is registered or licensed under the Travancore Chitties Act, 1120, or the Cochin Kuries Act, 1107, or conducted under any chit fund scheme, and which had not terminated one year before the commencement of the Act." It was conceded in the court below that the respondent was an agriculturist within the meaning of the Act but the contention was raised that he was not entitled to relief under the Act because the chitty scheme as registered was one and entire and terminating as it did under the variola within one year of the Act the chitty debt to whichever class it may appertain must be held to be outside the purview of the Act. The court below overruled the contention by holding that the liability of the chitty subscribers under each class was distinct and separate and there was no reason accordingly to shut out the respondent's debt under the A class from the scope of the definition of 'debt' in the Act. And as the instant court sale had been held for realisation in part at least of a'debt' under the Act the sale had to be set aside in whole. In the result the court below set aside the court sale and allowed the respondent to pay proportionate part of his judgment-debt, in relation to his A class ticket in instalments under the Act. Hence this revision. 3. In the result the court below set aside the court sale and allowed the respondent to pay proportionate part of his judgment-debt, in relation to his A class ticket in instalments under the Act. Hence this revision. 3. Learned counsel for the appellant questioned that there was at all a'debt' under the Act which led at least in part to the court sale here and said that the court sale could not in any event be effected because the 'debt' did not entirely account for it Now there can be no doubt that the chitty scheme though registered as one did really consist of, four schemes, with separate sets of rights and liabilities governing the various classes of tickets A, B, C & D. The A class ticket holders formed one group and were entitled without regard to the rest to mould their rights and obligations and this they did by special resolution. If so there can be no point in looking to the termination as originally fixed for all the classes, for determining what in the final event, was the termination for the A class tickets. And this must apply in evaluating the nature of the debt covered by the respective classes from the point of view of the Act as well. There is also no substance in the argument that the court sale must stand unless the entire judgment-debt in support thereof was covered by the Act. For if the sale could not be supported in part, it has necessarily to go in whole. Reference may be made in this connection to a parallel case under S.13 of the Travancore Debt Relief Acts II & III of 1116, Kuruvila v. Cheriyan,1946 T. L. R.467. Part of the decree-debt there was outside the scope of the Act but still the execution sale held in execution of the decree was set aside. The learned judges said: "the applicability of S.13 cannot be avoided by the circumstance that part of the debt for which the sale was held was not a debt which can be conciliated under the Debt Relief Act. So long as part of the debt for which the sale was held is one to which the Debt Relief Act is applicable, the debtor has the undoubted right to invoke the aid of the section". 4. So long as part of the debt for which the sale was held is one to which the Debt Relief Act is applicable, the debtor has the undoubted right to invoke the aid of the section". 4. Learned counsel then raised the question not raised in the court below or covered by the revision memorandum, that S.22 (3) of the Act could not apply because the court sale here had taken place in full satisfaction of the decree so as to leave no "Judgment-debtor" outstanding at the date of the Act and he referred to Ranganayakulu v. Gopayamma A.I.R. 1942 Mad. 323. That case had no doubt held that the corresponding provision in S.23 of the Madras Agriculturists' Relief Act, 14 of 1938, cannot be construed to apply to a decree which has already been fully satisfied before the Act came into force and in respect of which no debt subsists on 22nd March 1938. It is clear however that the case above said cannot apply because the court sale here is yet unconfirmed. Even otherwise the Madras Act had special provisions in S.7 and 19 which contemplated only decrees which were not yet satisfied. The section here is too clear to admit of the doubt raised. 5. The result is that the Revision fails. It is therefore dismissed with costs. Dismissed.