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1961 DIGILAW 41 (KER)

Joseph v. The Kerala Service Bank Limited

1961-01-28

C.A.VAIDIALINGAM, S.VELU PILLAI

body1961
ORDER C.A. Vaidyalingam, J. 1. This is a revision filed by the debtors, against the order of the learned Subordinate Judge of Kottayam dismissing the application filed by them namely, DRP. 73/59, under S.15 of the Kerala Agriculturists Debt Relief Act, 1958-Kerala Act XXXI/ 1958. 2. In the application, the petitioners had stated that they are unable to pay the debt mentioned in the application under the provisions of the Act and the object was to have a settlement of their debts in relation to the various creditors who are also shown in the application. 3. The main objection that was taken before the learned judge appears to have been that the 2 items of property shown as assets in the application, had already been sold in a court auction held on 26-6-58 in execution of the decree obtained by the first counter-petitioner in the lower court in O.S. 20/1955, Kottayam District Court. The controversy appears to have been as to whether, in view of this circumstance, the application filed by the petitioners was maintainable. 4. Ultimately, the learned judge, though he casually refers to certain other provisions of the Act, especially S.22, is of the view that because of the fact that the two assets shown in the petition, have been sold on 26-6-58 in court auction and notwithstanding the fact that the same was only pending confirmation, it cannot be stated that the petitioners are possessed of any assets. 5. Therefore, on this ground, without in any way embarking on the other points in controversy as between the parties, the learned judge has dismissed the application as not maintainable. 6. We have to proceed on the basis that the learned judge probably had in mind the definition of the expression "agriculturist" contained in S.2 [a] of the Act as a person who has an interest in any agricultural land. That is, the learned judge's view appears to be that in view of the fact that the assets shown in the application, have been sold, the petitioners must be considered to be persons who have no interest in the agricultural land. 7. The question is whether this view of the learned judge is correct. 8. That is, the learned judge's view appears to be that in view of the fact that the assets shown in the application, have been sold, the petitioners must be considered to be persons who have no interest in the agricultural land. 7. The question is whether this view of the learned judge is correct. 8. The learned counsel appearing for the first respondent, was not able to convince us that this reasoning of the learned judge that the petitioners cannot be stated to have an interest in the property, notwithstanding the fact that the sale held in court auction was pending confirmation, is correct. 9. A few dates may be mentioned in this connection. The court sale in execution of the decree in O.S. 20/1955, District Court, Kottayam took place on 26-6-58 and the petitioners had also filed an application to set aside the said sale under O. XXI, R.90, CPC. on 26-7-58. On 19-1-59, the petitioners filed the present application, the order in which is the subject of attack under S.15 of the Act. 10. The view of the learned judge that the petitioners in this case cannot be stated to have any interest in the immovable property in the circumstances, cannot certainly be accepted and that view also appears to be unsound, in view of the principles laid down by their Lordships of the Privy Council in Raghunathan v. Commissioner, Income-tax (AIR. 1933 PC 101). These principles have also been applied to an application filed by a debtor under the Madras Agriculturists' Relief Act - Madras Act IV/ 1938, by the Madras High Court in the decision reported in Nataraja Pillai v. Rangaswami Karamundar (194111 MLJ. 682: AIR. 1942 Mad. 119. Those principles have been also applied with approval by a Full Bench of the Travancore High Court in the decision reported in Meenakshi Ammal v. Subbayya Pillai (XXXIV TLJ. 75 (FB ). In view of all these decisions, it follows that the view of the learned judge that the petitioners have no interest in the immovable property, in the circumstances of the case, cannot certainly be sustained. 11. The learned judge has dismissed this application only on this technical ground. 75 (FB ). In view of all these decisions, it follows that the view of the learned judge that the petitioners have no interest in the immovable property, in the circumstances of the case, cannot certainly be sustained. 11. The learned judge has dismissed this application only on this technical ground. Therefore, it follows that the order under attack, will have to be set aside and is hereby set aside and the application will be taken back on file by the learned judge and disposed of according to law. 12. We may also state that Mr. V.S. Moothath, learned counsel for the 1st respondent in these proceedings namely, the decree-holder-purchaser in OS. 20/1955, District Court, Kottayam, has raised a contention that, even assuming that an application under S.15 of the Act can be held to be maintainable by the petitioners, still the petitioners cannot claim any relief by way of settlement of debt, so far as the first respondent is concerned. That contention is again based on the provisions of S.22 of the Act. Mr. Moothath urges that if the petitioners want to seek relief as against the first respondent either as regards the debt, or as regards the sale that has taken place, the petitioner's rights are definitely to be found only in the provisions specifically made under S.22 of the Act. The petitioners not having chosen to adopt that right given under S.22, it is not open to them to seek relief under the general provisions of S.15 of the Act. 13. As we have indicated earlier, though the learned judge makes a very casual reference to the provisions of S.22 of the Act, the learned judge has not considered the matter from all its aspects. We cannot certainly proceed on the basis that the learned judge has come to a definite conclusion one way or the other. We are indicating all these aspects, so that it is open to the first respondent to raise any other contentions that may be available to him in law to non-suit the petitioners in the application that has been filed in the lower court. We are indicating all these aspects, so that it is open to the first respondent to raise any other contentions that may be available to him in law to non-suit the petitioners in the application that has been filed in the lower court. It is not open to either the first respondent, or any other respondents before us to raise the point which was once decided in their favour and which view has not found acceptance before us, namely, about the non-maintainability of the application on the ground that the petitioners have no interest in agricultural land. 14. With these observations, the order under attack is set aside and the application remanded to the learned judge for fresh disposal, according to law. Parties will bear their own costs throughout.