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1960 DIGILAW 501 (KER)

Mathoo Paulo v. Kunjuvariathu

1960-12-23

M.S.MENON, T.K.JOSEPH

body1960
Judgment :- 1. Defendants 1 and 2 against whom a decree for money was passed applied under Act 31 of 1958 (Kerala) for permission to pay the decree amount in instalments as provided by the Act. Holding that the 1st defendant was not an "agriculturist" the court below allowed relief only to the 2nd defendant who was found to be an agriculturist. The 1st defendant has therefore preferred this Civil Revision Petition. 2. The first defendant's case is that even though he is not an agriculturist he is entitled to some relief as the 2nd defendant has been allowed to pay the amount in instalments. The relief as indicated by counsel for the petitioner is that the decree cannot be executed until the 2nd defendant completes payment of the reduced sum or at any rate, until he commits default in payment. Reliance is placed on Clause.2 of S.3 and Clause.4 of S.10 of the Act. S.3 [2] lays down the principles for the award of costs in suits filed against an agriculturist or an agriculturist and non-agriculturist together as the case may be and this has no bearing on the question raised in this Revision Petition, S.10 (4) states: "Where in any suit to recover a debt or in any application for the execution of a decree therefor the debt is payable by an agriculturist jointly with a non-agriculturist the Court shall pass a decree or make an order for the payment of the debt found due from the agriculturist as provided in sub-section (2) of S.4 and make such provision in the decree or order against the non-agriculturist as the circumstances of the case may warrant;" According to counsel for the petitioner, the last clause would be meaningless unless the court is to give such directions as are now claimed by him. We are unable to accept this argument. When one of two or more judgment debtors jointly and severally liable under a decree, is a non-agriculturist, appropriate directions have to be made in the decree in respect of the amount for which he can be made liable. Though he is not entitled to any benefit under the Act, any payment made by the judgment-debtor who is an agriculturist will go towards reduction of the former's liability under the decree and necessary directions relating to this have to be made in the decree. Though he is not entitled to any benefit under the Act, any payment made by the judgment-debtor who is an agriculturist will go towards reduction of the former's liability under the decree and necessary directions relating to this have to be made in the decree. To accept the argument advanced on behalf of the petitioner would lead to the absurd position that though the statute applies only to agriculturists as defined by the Act, non-agriculturists who associate with agriculturists in incurring debts will be in an advantageous position as they will get respite from being molested by execution proceedings until the co-debtor pays the last instalment or commits default in payment. It is clear that the statute leaves intact the creditors' remedies against non-agriculturists. The petitioner's contention cannot therefore be accepted. 3. We therefore confirm the order of the court below and dismiss the Civil Revision Petition with costs. Dismissed.