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1960 DIGILAW 162 (KER)

Mariakutty v. Lonan

1960-03-23

M.S.MENON, T.K.JOSEPH

body1960
Judgment :- 1. An application by the judgment-debtor in O.S. No. 155 of 1956 of the Subordinate Judge's Court, Ernakulam, for relief under Act 31 of 1958 was dismissed on the ground that the debt was covered by the Exception in S.2 (c) vii of the Act, i. e., "any debt which represents the price of goods purchased for the purpose of trade", and the judgment-debtor has brought this appeal. 2. The decree in question was one obtained on the basis of a simple mortgage executed by the appellant in favour of the decree-holder. The consideration is made up of Rs. 16759-3-6 due from her husband to the plaintiff as price of goods sold and Rs. 8250-12-6 to be advanced to the appellant later. It is admitted that the appellant had guaranteed a sum of Rs. 15000/- out of the aforesaid sum of Rs. 16759-3-6. As regards the balance claimed in the suit, viz., Rs. 4870-5-4, the judgment-debtor did not seek any relief in the court below. The controversy was limited to the first sum and the only point urged by the judgment-debtor was that the character of the debt was changed when the hypothecation deed was executed by her and accepted by the decree-holder. The learned Subordinate Judge repelled this contention by a clear and cogent order with which we are in complete agreement. 3. Counsel for the appellant wanted to rely on the decisions reported in AIR. 1932 Madras 436, AIR, 1941 Mad. 116 and 33 Cochin 334, in support of his argument that the debt ceased to be one representing the price of goods. These decisions have no application to this case. What we have to do in this case is to construe a provision in Act 31 of 1958 and decisions construing other statutes which do not contain a similar provision are of no help. There was a provision corresponding to S.2(c)vii of Act 31 of 1958 in Acts II and III of 1116 (Travancore), excluding debts representing price of goods from the operation of the Act and the same came up for consideration in 31 TLJ. 41. Nokes, J., who wrote the leading judgment pointed out that the word "representing" is one of wide import.& that execution of documents in respect of such debts or renewal of such documents will not make the Debt Relief Act applicable to such debts. 41. Nokes, J., who wrote the leading judgment pointed out that the word "representing" is one of wide import.& that execution of documents in respect of such debts or renewal of such documents will not make the Debt Relief Act applicable to such debts. With respect, we adopt the view laid down in 31 TLJ. 41. We therefore uphold the conclusion reached by the learned Subordinate Judge. 4. Counsel for the appellant wanted us to grant relief in respect of costs decreed to the plaintiff. This was not claimed in the court below and a specific ground was not taken even in the memorandum of appeal. In theses circumstances, we are unable to grant this prayer. 5. In the result we confirm the order of the court below and dismiss the appeal with costs. Dismissed.