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1961 DIGILAW 311 (KER)

Kanaran Nair v. Appu Nair

1961-09-14

MOHAMMED AHMED ANSARI

body1961
Judgment :- 1. The revision petitioner seeks to vacate the order by the lower court, giving to the representative of a judgment-debtor the benefit of S.22 clause (3) of the Kerala Agriculturists Debt Relief Act, 1958, and setting aside an auction sale. The litigation between the parties to the petition has a long history, which begins with the parties to a suit for partition being called upon to pay for the stamp papers for drafting the final decree. Some of them did not comply, and the entire amount was paid by defendants 31 to 33. To recover such payment from the other co-sharers, a charge had been given in the final decree to the paying defendants on the shares of the other co-sharers in the properties partitioned Later the aforesaid charge was enforced to realise what was due from defendants 34 to 42, the properties charged were put to sale, actually sold, and purchased by the revision petitioner. 2. Another, who had taken assignment of the rights of defendants 34 to 42, filed an application claiming relief under O. XXI, R.90, CPC averring fraud, and the application came to be decided after the Kerala Agriculturists Debt Relief Act, 1958, had come into operation. The lower court has allowed it in exercise of powers under S.22 (3) of the Act rejecting the objection of that application being beyond the period of limitation. 3. The petitioner's learned advocate has urged two grounds against the order. He has argued that the benefit of the section is personal, and the representative of the judgment-debtor cannot invoke the sub-section. The next argument is that the amount, for which the properties had been sold, is owelty, and, therefore, not judgment-debt, with the result of the exercise of power in the particular case being without jurisdiction. The learned Advocate has fairly drawn my attention to the Full Bench decision in Parvathi Amma v. Makki Amma, A.S. No. 618/58 decided on 30th August, 1961, where the learned judges have held that owelty would be the price of land alone, which had been taken from co-sharers and allotted to another on a partition, with the result of its being a vendor's charge for unpaid price. They have, therefore, held that such a charge is within Exception (vii) in the definition of 'Debt' under the Act. They have, therefore, held that such a charge is within Exception (vii) in the definition of 'Debt' under the Act. It is obvious that what be charged on the partitioned property for payment of stamp paper, would not be owelty; and, therefore, the second argument by the petitioner's Advocate fails. 4. I am equally satisfied about the first argument being incorrect. The word 'judgment-debtor' in the legislation for relief of agriculturists, has been given wider meaning by the Madras High Court in order to give effect to the legislative policy of indebted agriculturists being given some relief, and such reasons would apply to similar words in the Act with similar object. Were it otherwise, the son of the deceased agriculturist judgment-debtor, who is himself agriculturist would not get the advantage of S.22 (3), though he would be liable for discharging the father's debt. That apart, the Legislature has, in 1961, clarified the position by adding to 'judgment-debtor' in the Explanation to sub-section 22 (3) "a person from whom the entire amount due under a decree has been realised by the sale of his immovable properties." It follows that such a person need not be a party to the decree, and may be his representative. The situation has, therefore, been further clarified that the benefit been made dependent upon agriculturist's property being sold in execution. It follows that the first argument also in the case has no force. On these reasons, the revision petition fails, and is dismissed. Dismissed.