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1962 DIGILAW 267 (KER)

SANGAMESWARA IYER v. DHANALAKSHMI BANK LTD.

1962-09-19

T.C.RAGHAVAN

body1962
Judgment :- 1. A short question under S.7 of Kerala Act XXXI of 1958 is involved in this case. 2. The petitioners are the judgment-debtors in a suit filed before and decreed after the commencement of the Act. At the time of passing the decree they sought relief under S.10 (3) and they were granted some relief as well. Thereafter, they filed an application under S.7 of the Act praying that the provisions of the Act might be applied to the decree and the decree be amended. This application has been rejected by the lower court and the correctness of that decision is being challenged before me. 3. The learned advocate of the petitioners invites my attention to a passage from a Division Bench ruling of this Court, to which I was a party. The case is M. K. Kuruvilla v. M. S. Joseph (1960 KLT. 1207) and the passage is to the effect that an agriculturist-debtor, against whom a suit is either pending at or instituted after the commencement of the Act, is entitled to claim relief under the Act both at the time when the decree is passed and also after the passing of the decree. The learned counsel argues on the basis of this passage that the agriculturist-debtor can seek relief under sub-sections 2 and 8 of S.10 prior to the passing of the decree; and if it was found that he was an agriculturist and some relief was also granted, he can again apply under S.7 (2) for amendment of the decree. The passage may be capable of that interpretation, if it is dislodged from the context and interpreted without reference to the context. In that case the question was whether the failure to take advantage of the provisions of sub-sections 2 and 3 of S.10 would debar the agriculturist-debtor from claiming relief under S.7 (2); and it was held that such failure would not operate as a bar. In coming to that conclusion we relied on the decision of the Supreme Court in S. PL Narayanan Chettiar v. M. Ar. Annamalai Chettiar (AIR. 1959 SC. 275) arising under S.19 of Madras Act IV of 1938, which is substantially the same as S.7 of the Kerala Act. In coming to that conclusion we relied on the decision of the Supreme Court in S. PL Narayanan Chettiar v. M. Ar. Annamalai Chettiar (AIR. 1959 SC. 275) arising under S.19 of Madras Act IV of 1938, which is substantially the same as S.7 of the Kerala Act. In that decision the Supreme Court observed in Para.9 of the judgment that different considerations would arise if a party asked for relief under the Act at the pre-decree stage and that relief was refused on the ground that the Act did not entitle him to any relief under it; and if the party, even after such refusal, made a second application, then the principle laid down in Narayanan Chettiar v. Rathinasami Padayachi (AIR. 1953 M.(421) would apply and the second application must fail on the ground that it had already been decided in his presence that he was not entitled to any relief under the Act. According to me, that observation of the Supreme Court applies to the present case; for, it is only reasonable to think that a judgment-debtor has no right to file successive applications for the same relief. As observed by the Supreme Court, it is not so much the application of the principle of res judicata that is the question to be decided, as the proper construction of the relevant section of the Act. What is it that S.7 (2) has conferred on the agriculturist-debtor? Has he got a right, even after seeking his relief under sub-sections 2 and 3 of S.10 at the pre-decree stage, to apply again under S.7 (2) for relief? I do not think that the legislature has intended to confer such a double relief. The intention of the legislature in enacting sub-section 2 of S.7 appears to be only to give two opportunities or occasions for claiming one relief and thus not to debar an agriculturist-debtor, who fails to take advantage of sub-sections 2 and 3 of S.10, from claiming relief after the decree. 4. The learned advocate of the petitioners contends that the observation of the Supreme Court hereinbefore referred to and the approval of the Madras decision in Narayanan Chettiar v. Rathinasami Padayachi mean only that if at the pre-decree stage relief was sought and it was refused on the ground that the debtor was not an agriculturist, he cannot again seek relief subsequent to the decree. According to him, that observation does not apply to a case where relief was sought and granted partially at the pre-decree stage on the finding that the debtor was as agriculturist and further relief is sought under S.7(2). I do not think there is any justification for making a distinction like that. The intention of the legislature appears to be that the agriculturist-debtor may claim relief either at the pre-decree stage or after the decree is passed under S.7 (2). The failure to avail of the right at the earlier stage will not be a bar to claim relief under S.7 (2). In a case like this, where the debtor chose to claim relief under sub-section 3 of S.10 and he was given partial relief, the debtor's remedy lies in an appeal against that order, if he claims more relief, and not in again applying under S.7 (2). 5. The Civil Revision Petition therefore fails and is dismissed. In the circumstances I pass no order regarding costs. Dismissed.