Koruthu v. Velu — 1962 DIGILAW 381 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. In this writ petition, Mr. T. N. Subramania Iyer, learned counsel for the petitioner, challenges the order of the learned Subordinate Judge, Quilon, holding that the first respondent in these proceedings is entitled to the benefits of section 9 (3) of the Kerala Agriculturists Debt Relief Act, 1958, Act XXXI of 1958, and in consequence permitting him to discharge, what he calls the debt, in the manner indicated under the Act. 2. It will be seen that this matter originally appears to have been filed as Civil Revision Petition No. 1234 of 1960 under section 115 of the Code of Civil Procedure; but doubts appear to have been entertained as to whether a revision is maintainable. My learned brother, Mr. Justice Raghavan, gave permission to the petitioner to convert the C.R.P. into an Original Petition under Article 227 of the Constitution and finally by his order, dated 7th June 1962, passed in C.M.P. No. 3855 of 1962, the learned Judge has given the petitioner permission to convert the C.R.P. into an Original Petition. In consequence, this writ petition was filed on 16th August 1962 and in view of the fact that this writ petition is really the old C.R.P. No. 1234 of 1960 in another form, at the time of admission itself, directed that the matter should be disposed of as expeditiously as possible. 3. The circumstances under which this writ petition has been filed may be briefly indicated. The first respondent executed an agreement on 10th Thulam 1I18, Ext. D-1, in favour of the petitioner, agreeing to sell certain properties for a total consideration of Rs. 1,200. There is no controversy that from and out of the consideration amount payable under Ext. D-1, on the date of the agreement itself a sum of Rs. 200 was paid by the petitioner to the first respondent as advance. The balance sum of Rs. 1,000 was to be paid by the petitioner on or before 10th Medam 1118, when the document of sale itself was to be executed. 4. The first respondent defaulted in the matter of execution of the document and ultimately the petitioner had to institute O.S. No. 925 of 1118 in the Court of the District Munsiff of Quilon for specific performance of the agreement of sale. Along with the plaint, the petitioner also deposited the balance consideration mentioned in Ext. D-1, namely Rs. 4. The first respondent defaulted in the matter of execution of the document and ultimately the petitioner had to institute O.S. No. 925 of 1118 in the Court of the District Munsiff of Quilon for specific performance of the agreement of sale. Along with the plaint, the petitioner also deposited the balance consideration mentioned in Ext. D-1, namely Rs. 1,000. 5. There was a decree for specific performance as prayed for in favour of the petitioner-plaintiff by the learned District Munsiff of Quilon. That decree was, no doubt, challenged by the first respondent before the Travancore High Court but the Travancore High Court confirmed the decree of the trial court by judgment and decree, dated 6th Thulam 1124. 6. Again, there appears to have been trouble in the matter of getting a sale deed executed by the first respondent and ultimately, it will be seen that on 24th Kanni 1125, the court executed a conveyance, Ext.D-2, in favour of the petitioner, and the petitioner also appears to have got possession, at any rate, of some of the items comprised in the sale deed. 7. The first respondent filed two applications, namely, C.M.P. Nos. 3905 of 1959 and 3967 of 1959 before the learned District Munsiff. C.M.P. No. 3905 of 1959 was filed on 24th March 1959 under section 9 (3) of Kerala Act XXXI of 1958. His contention appears to have been that the transactions evidenced by Exts. D-1 and D-2 must be considered to be transactions of debt and that he is entitled to re-open the said transactions, especially when the relationship of the petitioner and himself is that of creditor and debtor and that, in consequence, he is entitled to discharge the debt in the manner specified in the Act itself. 8. This application was contested by the petitioner on several grounds. A large contention was taken that the first respondent is not entitled to any relief at all under the provisions of Kerala Act, XXXI of 1958. It appears to have been urged that the first respondent is not an agriculturist and that the transactions in question must be considered to have taken place prior to 1st January 1946 and, therefore, the provisions of section 9 (3) will not apply. It appears to have been urged that the first respondent is not an agriculturist and that the transactions in question must be considered to have taken place prior to 1st January 1946 and, therefore, the provisions of section 9 (3) will not apply. The petitioner also appears to have raised a contention that the transaction has merged in the decree of court, and no decree can be re-opened under section 9 (3). The petitioner further urged that, in any event, the first respondent cannot be considered to be a party to the transaction, as is essential under section 9 (3) of the Act. 9. The second application that I mentioned earlier, namely, C.M.P. No. 3967 of 1959 was really for interim directions, pending C.M.P. No. 3905 of 1959 and that application was filed on 30th March 1959. The first respondent, in the said application, asked for two reliefs namely, (a) for re-delivery of the properties which appear to have been taken possession of by the petitioner on the basis of the sale deed executed by the court and (b) to stay further delivery of the other properties which continued to be in his possession and which had not been delivered over to the decree holder-petitioner. 10. The learned District Munsiff first took up C.M.P. No. 3967 of 1959. That court was of the view that the proceedings must be considered to have terminated in a decree, and that, under section 9 (3), it is not open to a party to ask for re-opening of a decree, and on that ground C.M.P. No. 3967 of 1959 was dismissed by the learned District Munsiff. 11. On appeal, the learned Subordinate Judge took a slightly different view, namely, that the transaction in this case must be considered to be one that took place prior to 1st January 1946 and, therefore, the party is not entitled to re-open the transaction under section 9 (3). Ultimately, the appellate court also confirmed the order of dismissal passed by the learned District Munsiff on C.M.P. No. 3967 of 1959. 12. These two orders passed by the learned District Munsiff and the learned Subordinate Judge on C.M.P. No. 3967 of 1959 came up before me at the instance of the first respondent herein in S.A. No. 603 of 1959. 12. These two orders passed by the learned District Munsiff and the learned Subordinate Judge on C.M.P. No. 3967 of 1959 came up before me at the instance of the first respondent herein in S.A. No. 603 of 1959. During the course of hearing of the second appeal, I felt that it is desirable that an adjudication is made by the courts concerned, on the main application which was pending before the trial court, namely, C.M.P. No. 3905 of 1959, and for this purpose I adjourned the further hearing of S.A. No. 603 of 1959 with a direction issued to the first court to take up C.M.P. No. 3905 of 1959 and to consider the question as to whether the first respondent is entitled to invoke the provisions of section 9 (3) of the Act. 13. The trial court took up the matter in consequence of the directions given by me. But the position did not improve in favour of the first respondent, because the learned District Munsiff, by his order, dated 17th August 1959, held that the transaction in this case must be considered to have taken place before 1st January 1946. The learned District Munsiff was also of the view that the first respondent cannot be considered to be a party to the transaction Ext. D-2, inasmuch as the document of sale was executed, not by the first defendant, but really by the court. The learned District Munsiff also took the view that the transaction, at any rate, in this case, must be considered to have merged in a decree of court, in O.S. No. 925 of 1118. Therefore, on that ground also the first respondent is not entitled to the claim under section 9 (3). On these grounds the learned District Munsiff held that the first respondent is not entitled to ask for relief under section 9 (3) of the Act and this preliminary order was passed in C.M.P. No. 3905 of 1959. 14. The first respondent challenged this order, dated 17th August 1959 passed by the learned District Munsiff in C.R.P. No. 693 of 1959. 15. The Second Appeal, S.A. No. 603 of 1959, and C.R.P. No. 693 of 1959 were disposed of by me by a common judgment and that decision of mine is reported in Neelakantan Velu v. Gheevarghese Koruthu I.L.R. 1960 Kerala 678. 15. The Second Appeal, S.A. No. 603 of 1959, and C.R.P. No. 693 of 1959 were disposed of by me by a common judgment and that decision of mine is reported in Neelakantan Velu v. Gheevarghese Koruthu I.L.R. 1960 Kerala 678. I have discussed the matter in very great detail and it is not really necessary for me to cover the ground over again. Ultimately, I have held that the first respondent before me must be considered to be a party to the transaction, Ext. D-2, notwithstanding the fact that the document of sale was actually executed by the court on behalf of the first respondent. In that connection, apart from referring to the various provisions of the Code of Civil Procedure and the Civil Rules of Practice and the relevant Forms, I have also adverted to the various decisions of courts bearing on that matter. 16. I have also held in that decision that the transaction which purports to be a transaction of sale is not the agreement, Ext. D-1, dated 10th Thulam 1118 as wrongly assumed by both the courts but really the transaction in and by which the properties were sold; namely, Ext. D-2, dated 24th Kanni 1125. That admittedly was after the period referred to in section 9 (3) of the Act, namely, 1st January 1946. Therefore, in fact, I summed up the position in my decision referred to above, that the transaction of sale in this case must be considered to have taken place after 1st January 1946 and that condition is satisfied under section 9 (3) of the Act. I also held that the first respondent before me should be considered to be a party to the transaction of sale, dated 24th Kanni 1125 executed in favour of the plaintiff and therefore that condition is also satisfied. 17. The question as to whether the first defendant is an agriculturist, which was also necessary to be satisfied in order to enable him to maintain an application under section 9 (3) had not been gone into. 17. The question as to whether the first defendant is an agriculturist, which was also necessary to be satisfied in order to enable him to maintain an application under section 9 (3) had not been gone into. It will also be seen that I had made it clear that as to what evidence and proof the first respondent will be able to place before the court to show that the transaction which purports to be a sale is really a transaction of debt did not arise then before me, because these points had not been gone into and the first respondent had not had an opportunity of placing the necessary materials in support of his plea. 18. Therefore, ultimately overruling the views expressed by the courts, which were the subject of attack in both the Second Appeal as well as the Civil Revision Petition referred to above, I directed the trial court to continue the further proceedings in C.M.P. No. 3905, of 1959 and proceed with the matter having due regard to the various directions and observations made in my judgment. 19. In consequence of these directions, the trial court has now taken up the matter and for the present I will only say that the first court has dismissed C.M.P. No. 3905 of 1959 filed by the first respondent before that court. 20. There was an appeal against this order of the learned District Munsiff, by the first respondent before the learned Subordinate Judge. The learned Subordinate Judge, on the other hand, has differed from the conclusions arrived at by the learned District Munsiff and has not only held that C.M.P. No. 3905 of 1959 filed by the first respondent is maintainable but he has also granted the relief to him, that could be granted in proceedings like that under the provisions of Kerala Act, XXXI of 1958. 21. The order of the appellate Judge reversing that of the trial court is under severe attack by Mr. T. N. Subramania Iyer, learned counsel for the petitioner. Before considering the approach made by the two courts and also the stand taken before me by Mr. T. N. Subramania Iyer, learned counsel for the petitioner, and by Mr. P. K. Kurien, learned counsel for the contesting first respondent, I will advert to the relevant provisions of the statute itself. 22. Before considering the approach made by the two courts and also the stand taken before me by Mr. T. N. Subramania Iyer, learned counsel for the petitioner, and by Mr. P. K. Kurien, learned counsel for the contesting first respondent, I will advert to the relevant provisions of the statute itself. 22. Kerala Act, XXXI of 1958 has no doubt been amended by Kerala Act, II of 1961, namely, the Kerala Agriculturists Debt Relief (Amendment) Act, 1960. 23. Wherever it is necessary, I will indicate also the difference between the two provisions as they stood prior to the amendment by this Act and also to the relevant provisions as they now stand after the amendment by Act, II of 1961. 24. Section 2 (a) defines the expression agriculturist and it is not necessary for me to consider the said definition in any great detail, because admittedly the trial court has held that the first respondent is an agriculturist and that has not been controverted or challenged either before the appellate court or even in these proceedings. Therefore, this court must proceed on the basis that the first respondent is an agriculturist as that expression is defined in section 2 (a) of the Act. 25. Section 2 (c) defines the expression 'debt' and that is as follows : 'Debt means any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act, whether payable under a contract or under a decree or order of any Court, or otherwise, and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists (Repayment of Debts) Act, 1955, or the Travancore-Cochin Indebted Agriculturists Relief Act, 1956 26. It is not necessary for me to refer to the various categories which are excluded from this definition of debt. The emphasis, it will be seen from the definition of the expression, is that there must be a liability in cash or in kind and it can be either secured or unsecured but it must be due from or incurred by an agriculturist on or before the commencement of the Act. 27. Section 2 (g) defines the expression pay and says that pay with its grammatical variations includes deliver. 28. 27. Section 2 (g) defines the expression pay and says that pay with its grammatical variations includes deliver. 28. Section 3 deals with the bar of certain applications and it is not really necessary for me to go into the various matters provided therein. 29. Section 4 again deals with payment of debts in instalments. In particular, section 4 (2) requires to be noted because the first respondent appears to have claimed a right to pay what he calls the debt in question under the provisions of this sub-section. That is to the effect: 'If any debt is repaid in seventeen equal half-yearly instalments together with interest, accrued due on the principal debt outstanding at the commencement of this Act till the date of payment of each instalment at the rate of 5 per cent per annum or the contract rate, whichever is less, the first instalment being payable before the expiry of a period of six months from the date of commencement of this Act and the remaining instalments being payable on or before the date of expiry of a period of six months from the last day on which the previous instalment was due, the whole debt shall be deemed to be discharged. 30. Section 5 deals with payment of interest and section 6 deals with the manner of adjustment of amounts either paid already or recovered through court. That is, provision is made that amounts that have been recovered or paid by the debtor in the first instance be adjusted towards costs and then towards principal. 31. Section 7 gives the right to the debtor concerned to have the decree passed, amended suitably to bring it in accordance with the provisions of the Act, Then again, section 8 gives a power to the court, at the instance of either the debtor or the creditor, to decide doubts and disputes regarding as to how the amount is payable under section 4. 32. Section 9 deals with the right to prove the nature of a transaction. 32. Section 9 deals with the right to prove the nature of a transaction. Section 9 (3) which has to be noted in this connection is as follows: '(3) Notwithstanding anything in the Indian Evidence Act, 1872, in the case of any transaction entered into on or after 1st January 1946 and purporting to be a sale of immovable property or a lease of usufructs, any agriculturist who is a party to the transaction may plead, adduce evidence and prove that the transaction is really a debt and thereupon the amount advanced shall be deemed to be the principal of the debt and the income from the property or the value of the usufructs, as the case may be, shall be appropriated towards interest calculated at the rate specified in section 5 on the principal and the balance, if any, towards the principal amount. The amount, if any, outstanding after such appropriation together with the value of improvements, if any, effected by the creditor shall be paid in accordance with the provisions of sub-sections (2), (3) and (5) of section 11, as if the transaction were a usufructuary mortgage and the rights of the creditor and the debtor shall be governed, as far as may be, by the provisions of the said sub-sections. � 33. Section 9 (3) extracted above is after the amendment of sub-section (3) by Kerala Act, II of 1961. It will be seen that section 9 (3) as it stood in Act, XXXI of 1958 prior to its amendment was as follows: "(3) Notwithstanding anything in the Indian Evidence Act, 1872, in the case of any transaction entered into on or after 1st January 1946 and purporting to be a sale of immovable property or a lease of usufructs, any agriculturist who is a party to the transaction may plead, adduce evidence and prove that the transaction is really a debt and thereupon the amount advanced shall be deemed to be the principal of the debt and the income from the property or the value of the usufructs, as the case may be, shall be appropriated towards interest calculated at five per cent per annum on the principal and the balance, if any towards the principal. The amount, if any, outstanding after such appropriation together with the value of improvements, if any, effected by the creditor shall be paid in accordance with the provisions of this Act and when such amount has been wholly paid the property shall be reconveyed to the agriculturist debtor. There is no material difference excepting that there is a change in the consequential relief that a party will be entitled to, once he is able to establish that the transaction, which purports to be by way of sale, is really a transaction of debt. Under sub-section (3) of section 9 of the old Act, it is stated that once the amounts are paid in the manner indicated therein, there should be a reconveyance of the property to the agriculturist debtor; whereas under sub-section (3) of section 9 after the amendment, it is provided that the provisions of sub-sections (2), (3) and (5) of section 11 will apply as if the transaction were a usufructuary mortgage and the rights of the creditor and the debtor shall be governed, as far as may be, by the provisions of the said sub-sections. That is why I said that there is no material difference excepting the manner in which the relief is to be given at the proper time. 34. At this stage I may also indicate that in the Act as it stood prior to its amendment, there was a provision in section 9, namely sub-section (2), giving a right of appeal against orders passed under sub-section (1) of section 9 and there was no similar provision contained in section 9 giving a right of appeal against an order passed under sub-section (3) of section 9. I am adverting to this aspect because one of the contentions of Mr. T. N. Subramonia Iyer is that the judgment and decree of the learned Subordinate Judge in this case should be considered to be absolutely void and illegal, because at the time when he entertained the appeal and at the time when he passed the final judgment, there was no right of appeal given to a party as has been given under section 9 (2) in respect of any order passed under section 9 (3). I will consider that aspect a little later. Section 11 deals with usufructuary mortgages. 35. I will consider that aspect a little later. Section 11 deals with usufructuary mortgages. 35. Section 22 gives a right to an agriculturist to have the sale effected in execution of decrees of court under certain circumstances reopened. This is largely the scheme of the statute. In my decision in Velu v. Koruthu I.L.R. 1960 Kerala 678 I have also referred elaborately to the scheme of the statute itself. 36. Now I will indicate the approach that has been made by the learned District Munsiff and the learned Subordinate Judge. Mr. T. N. Subramania Iyer, learned counsel for the petitioner, has urged before me that the view expressed by the learned District Munsiff for coming to the conclusion that the first respondent is not entitled to any relief under the provisions of the Act should be accepted by this Court. On the other hand, Mr. P. K. Kurien, learned counsel for the contesting first respondent urged before me for accepting the view expressed by the learned Subordinate Judge. 37. The learned District Munsiff sets two points for consideration, namely, whether the first respondent is an agriculturist within the definition of section 2 (a) of Kerala Act 31 of 1958. So far as that is concerned, the finding of the learned District Munsiff is that the first respondent is an agriculturist and as I have mentioned earlier, that finding is not challenged by anybody. 38. The second point that was set by the learned District Munsiff for decision was as to whether the transaction of sale, dated 24th Kanni 1125 is a transaction of debt. 39. So far as that is concerned, the learned District Munsiff proceeds to consider as to whether on the date of the sale deed, Ext. D-2, the first respondent owed any money to the plaintiff and whether there was any relationship of debtor and creditor on the date of Ext. D-2. 40. In this connection, the learned District Munsiff notes the contention advanced on behalf of the defendant that on the date of the agreement, Ext. D-1, a sum of Rs. 200 was received from the petitioner by the first respondent as advance, which amount was utilised by the first respondent for payment of a debt under Small Cause Suit No. 2414 of 1108. He also takes note of the recital in Ext. D-1, a sum of Rs. 200 was received from the petitioner by the first respondent as advance, which amount was utilised by the first respondent for payment of a debt under Small Cause Suit No. 2414 of 1108. He also takes note of the recital in Ext. D-1 to the effect that the first respondent was directed to pay the said decree amount as per a Dhananischayam deed, Ext. P-5. That document appears to have been produced by the decree-holder, namely, the petitioner before me. 41. The learned District Munsiff then considers an objection that appears to have been taken on behalf of the petitioner that the debt for the repayment of which Rs. 200 was utilised, was not really a debt of the first respondent but really a debt of the mother of the first respondent. 42. This aspect is considered by the learned District Munsiff and he is of the view that the decree debt in S.C.S. No. 2414 of 1108 is to be considered to be debt of the first respondent mother and not that of the first respondent. 43. The learned District Munsiff again is of the view that there was no debtor and creditor relationship between the first respondent and the decree-holder on the date of Ext. D-1 or even on the date when the sale deed, Ext. D-2 was executed, and then he refers to the fact that there is no undertaking in Ext. D-1 by the first respondent to repay the advance that has been received under Ext, D-1. 44. The learned District Munsiff also takes note of the fact that the decree-holder was prepared to take the sale and on failure by him, he was to forfeit the amount advanced and in no case was the decree-holder entitled to recover the amount advanced from the first respondent. 45. Here again, the learned District Munsiff deals with a contention on behalf of the first respondent, namely, that the sale deed in favour of the petitioner was occasioned on account of the indebtedness of the first respondent to others and that he is entitled to the benefits of Kerala Act XXXI of 1958. 46. But dealing with this contention, the learned District Munsiff again states that the first respondent was not personally bound to pay the decree debt in S.C.S. No. 2414 of 1108, and therefore, the agreement, Ext.D-1, or the sale deed Ext. 46. But dealing with this contention, the learned District Munsiff again states that the first respondent was not personally bound to pay the decree debt in S.C.S. No. 2414 of 1108, and therefore, the agreement, Ext.D-1, or the sale deed Ext. D-2, were not executed by the first respondent on account of his indebtedness as argued by the learned counsel for the first respondent. 47. The learned District Munsiff is of the view that if the sale deed was executed by the first defendant to pay off the pre-existing debt due from the first defendant to the (decree- holder, the argument of the learned counsel for the first defendant would have been alright�. But the trial court found that the first defendant had failed to prove that the transaction of sale, dated 24th Kanni 1125 is really a debt and not a sale deed and, he further says that by no stretch of imagination can it be said that the sale deed was an agreement to pay off the debt due to the decree-holder. 48. Finally, the learned District Munsiff says that excepting producing the agreement, Ext. D-1. and the sale deed, Ext. D-2, and advancing an argument that at the time when the transactions were entered into, the first respondent owed money to other parties, no further evidence has been adduced by him before the court. Ultimately, the learned District Munsiff dismisses the application on the ground that the first respondent is not entitled to any relief. 49. The learned Subordinate Judge does not agree with the view of the learned District Munsiff. The learned Subordinate Judge criticises the view of the learned District Munsiff that the first respondent was only acting in a fiduciary capacity when he received the amount of part consideration of Rs. 200 and discharged the debt under Ext.P-5. The learned Subordinate Judge again criticises the view of the District Munsiff that the debt, which was discharged by him under Ext.P-5 from and out of the sale consideration received as advance namely, Rs.200 must be considered to be a debt payable by the first respondent himself. Then he goes into Explanation II to sub-section (11) of clause (d) of section 2 which, in my view, has absolutely no relevancy in considering the matter on hand. Then he goes into Explanation II to sub-section (11) of clause (d) of section 2 which, in my view, has absolutely no relevancy in considering the matter on hand. Then the learned Subordinate Judge is of the view that for invoking the provisions of Act XXXI of 1958, it is enough if an agriculturist has incurred a liability to pay a debt and that will give him the right to invoke the provisions of Act XXXI of 1958. 50. The learned Subordinate judge then comes to the conclusion that a person who files an application under sub-section (3) of section 9 need not be personally liable to discharge the debt to enable that person to claim the benefits conferred by section 9 (3) . The learned Subordinate Judge again finally says that the first respondent has to be considered to be an agriculturist entitled to file an application under section 9 (3) though he was not personally liable to discharge the debt recited in Ext. D-1. Obviously the reference is to the discharge of the debt due under Ext .P-5. The learned Judge is of the view that the first respondent has incurred a liability to discharge the debt, according to the provisions of Ext. P-5 inasmuch as there has been a direction in Ext. P-5 to the first respondent to discharge the debt and so it must be held that the first respondent is a debtor in the circumstances of the case. That is the finding recorded by the learned Subordinate Judge, namely, that the first respondent is a debtor within the meaning of the term as defined in section 2 (c). 51. The learned appellate Judge proceeds to state that the first respondent must be considered to be an agriculturist debtor who is entitled to file an application under section 9 (3) and to prove that the transaction of sale relates to a debt as defined in the Act. 52. The learned Subordinate Judge then criticises the view of the learned District Munsiff that there should be a relationship of creditor and debtor between the petitioner before me and the first respondent in these proceedings, so as to entitle him to file an application under the provisions of Act XXXI of 1958. 52. The learned Subordinate Judge then criticises the view of the learned District Munsiff that there should be a relationship of creditor and debtor between the petitioner before me and the first respondent in these proceedings, so as to entitle him to file an application under the provisions of Act XXXI of 1958. In this connection the learned Subordinate Judge is of the view that under subsection (3) of section 9, it is not necessary that there should be the relationship of creditor and debtor between the petitioner and the first respondent so as to enable the first respondent to obtain the benefits of sub-section (3) of section 9. 53. The learned Subordinate Judge reiterates more or less the same view and comes to the conclusion that the first respondent need not be a debtor of the decree-holder in order to enable him to apply under section 9 (3). 54. Ultimately, the learned Subordinate Judge comes to the conclusion that the first respondent in this case should be considered to be a party to the deed, namely, Ext. D-2 and the transaction of sale of immovable property must be considered to have taken place after 1st January 1946, that the first respondent is a debtor, and the transaction of debt is one incurred by the first respondent and as such he is entitled to pay the debt in question in terms of Act XXXI of 1958. Finally, the learned Subordinate Judge says that the application filed by the first respondent, under section 9(3) is maintainable and the transaction of sale of immovable property Ext. D-2, is really for a debt of the first respondent and, therefore, he holds that the order of the District Munsiff dismissing C.M.P. No. 3905 of 1959 cannot be sustained. 55. Before I consider the contentions that have been raised by learned counsel before me, it is necessary to deal with one aspect which has been presented before me by Mr. T. N. Subramania Iyer, learned counsel for the petitioner, i.e., the jurisdiction of the learned Subordinate Judge to hear the appeal which is under attack in these proceedings. 56. It will be seen that the order of the learned District Munsiff was passed on 7th October 1960 and that the order of the appellate court was passed on 12th Koruthu November 1960. Learned counsel Mr. 56. It will be seen that the order of the learned District Munsiff was passed on 7th October 1960 and that the order of the appellate court was passed on 12th Koruthu November 1960. Learned counsel Mr. T. N. Subramania Iyer, in this connection, referred me to the provisions of section 8 (6) in the old Act giving a right of appeal to a party against the orders passed under section 8(1). Similarly, Mr. T. N. Subramania Iyer invited my attention to the provision contained in section 9 (2) of the original Act giving a right of appeal against the order passed under section 9(1). In this connection, the learned counsel stressed that there is no corresponding provision in section 9 giving a right of appeal against an order passed under section 9 (3). Then the learned counsel referred me to section 13 of the original Act wherein an appeal was provided. Therefore, Mr. T. N. Subramania Iyer, learned counsel for the petitioner, urged that wherever the Legislature considered it necessary to give a right of appeal against particular orders passed under the statute it has specifically conferred that right of appeal on the aggrieved party. The learned counsel urged that a right of appeal must be specifically conferred. In this case, Mr. T. N. Subramania Iyer urged that on the date when the appeal was entertained by the learned Subordinate Judge and on the date when the judgment was rendered namely, 12th November 1960, there was no provision in the statute giving a right of appeal to a party aggrieved against a decision passed under section 9 (3). Therefore the learned counsel urged that this court must declare that the proceedings initiated before the learned appellate Judge and the order passed by that court are non est in the eye of law. 57. The objection regarding the maintainability of the appeal has, no doubt, been dealt with by the learned appellate judge, but he was prepared to proceed on the basis that the order must be considered to be one passed in execution, discharge or satisfaction of the decree and, therefore, an appeal will lie under section 47 of the Code of Civil Procedure. In this view, the learned Subordinate Judge has overruled the objection of the decree-holder regarding the maintainability of the appeal. 58. Mr. In this view, the learned Subordinate Judge has overruled the objection of the decree-holder regarding the maintainability of the appeal. 58. Mr. P. K. Kurien, learned counsel for the first respondent has no doubt relied on the decision of the Privy Council in Adaikappa v. Chandrasekhara A.I.R, 1948 P.C. 12. as well as a decision of this court to which I was also a party, namely, Subramania Nadar v. P. R. & Co. 1959 K.L.T. 334. support of his contention that inspite of the fact that there are no specific provisions conferring a right of appeal, inasmuch as jurisdiction has been given to a court to adjudicate upon matters, the ordinary right of appeal that is available to a party can be availed of. 59. Learned counsel quite naturally placed considerable reliance upon the provisions of Kerala Act II, of 1961, whereby a new section, namely section 23-A, has been incorporated in the main Act, giving a right of appeal against various orders, including an order under section (3). The learned counsel urged that Kerala Act II of 1961 has categorically stated that the said amending Act must be deemed to have come into force on 14th July 1958, the date of coming into force of the original Act itself. Therefore, Mr. P.K. Kurien, learned counsel for the first respondent, urged that in this case this court must proceed on the basis that there were provisions even in the original Act itself giving a right of appeal against an order under section 9 (3) also, in which case the appeal before the appellate court was properly filed and the learned Subordinate Judge had jurisdiction to entertain and dispose of the appeal. 60. In my view, it is not necessary to consider the scope of the decision of either the Privy Council or the decision of this court referred to above. A decision can be given rejecting the contention of Mr. T. N. Subramania Iyer based almost exclusively on the provisions of the amending Act of 1960. 61. It will be seen that section 1 (2) of the Kerala Agriculturists Debt Relief (Amendment) Act, 1960, Act II of 1961, clearly says that the amending Act shall be deemed to have come into force on 14th July 1958. T. N. Subramania Iyer based almost exclusively on the provisions of the amending Act of 1960. 61. It will be seen that section 1 (2) of the Kerala Agriculturists Debt Relief (Amendment) Act, 1960, Act II of 1961, clearly says that the amending Act shall be deemed to have come into force on 14th July 1958. There is no controversy that the original Act XXXI of 1958 came into force with effect from 14th July 1958 in which case, from the amending Act it follows that all the provisions of the amending Act, though made in 1960, must be considered to have formed part of the original Act itself as and when the original Act came into force on 14th July 1958. It will be seen that section 16 of the amending Act incorporates a new section 23-A in the parent Acts Act XXXI of 1958, and under that, there is no controversy, there is provision for appeals against various orders, which include also an order passed under sub-section (3) of section 9 of the Act. No doubt, Mr. T. N. Subramania Iyer, learned counsel for the petitioner, urged that the Act has not made any consequential provisions for matters which had already been disposed of. But, in my view, it is not at all necessary because the Act is very clear. The Act says that the amendments effected there under must be considered to have come into force even from the date of the passing of the original Act itself in which case, the parent Act must be considered to have contained all these provisions. 62. Therefore, the contention raised on behalf of the petitioner by Mr. T. N. Subramania Iyer, learned counsel, that the first respondent had no right of appeal which he could invoke before the appellate court and in consequence, the order of the appellate court must be treated to be void cannot be accepted. 63. Then the question is whether the view expressed by the two subordinate courts is correct. As I mentioned earlier, Mr. T. N. Subramania Iyer, learned counsel for the petitioner, has urged for the acceptance by this court of the views expressed by the learned District Munsiff, and Mr. P. K. Kurien, learned counsel for the first respondent, has urged for acceptance by this court of the views expressed by the learned appellate Judge. As I mentioned earlier, Mr. T. N. Subramania Iyer, learned counsel for the petitioner, has urged for the acceptance by this court of the views expressed by the learned District Munsiff, and Mr. P. K. Kurien, learned counsel for the first respondent, has urged for acceptance by this court of the views expressed by the learned appellate Judge. I have already indicated in the earlier part of this judgment, the approach made by the two subordinate courts. I am not impressed with the approach made by either the learned District Munsiff or by the learned Subordinate Judge. Both the lower courts have missed very important matters which have to be kept in mind in considering the scope of section 9 (3) of the Act. Both the lower courts have missed in the first instance that the object of section 9 (3) of Act XXXI of 1958 is not to permit an agriculturist to re-open automatically all transactions of sale which took place after 1st January 1946, whatever may be their real nature. Secondly, one other aspect that has been missed by both the subordinate courts is that what the sub-section deals with is that it gives a limited right to an agriculturist, who is a party to a transaction, which on the face of it purports to be a sale, by giving liberty, notwithstanding the provisions of the Indian Evidence Act, to plead, adduce evidence and prove that the transaction, though it outwardly and nominally purports to be a sale of immovable property, is not what it represents to be but really a transaction of debt. In other words, he can plead and prove that the relationship created by that transaction is not that of a vendor and vendee but that of a creditor and debtor. Unfortunately these two aspects have been totally missed by both the subordinate courts. The question as to whether an agriculturist who invokes the provisions of section 9 (3) has already been a debtor of the particular person in whose favour a document of sale stands, or whether the consideration, in part or whole, received by sale of those properties has been utilised for the purpose of discharging the debts of the agriculturist, either to others or even to the vendee, is not conclusive of the matter one way or the other. For the maintainability of an action under section 9 (3), what is necessary is: (a) there must be a transaction; (b) that transaction must be one entered into on or after 1st January 1946; (c) that transaction must purport to be a sale of immovable property or a lease of usufructs; (d) that transaction must be by an agriculturist, and who is a party to the transaction. No doubt, matters like his being indebted either to others or to the vendee, may be circumstances, if properly pleaded, proved and established, to be taken into account in coming to a conclusion as to whether the plea of an agriculturist, who is a party to the transaction what purports to be a sale of immovable property is not really a sale but a transaction evidencing a creditor-debtor relationship is sustainable or not. It will be seen that the legislature is very guarded and uses the expression thereupon� because it is only when an agriculturist is able to establish that the transaction is one of borrowing or loan and thus creating a creditor-debtor relationship, that the amount advanced becomes principal, and income from the property to be appropriated towards interest. The vendee becomes creditor and the vendor, the debtor and their rights are to be adjusted on such basis. The proviso to section 9 (3) also saves bonafide transfers before 20th November 1957 from such vendee who is found to be really a creditor . 64. That is why, I mentioned, that the approach made by the District Munsiff, where emphasis is very much laid upon the necessity for pre-existing relationship of a creditor and debtor between the petitioner in this case and the first respondent, or the view of the learned Subordinate Judge, that when a document of sale is executed by A to B, A is entitled to file an application under section 9 (3) when once he is able to establish that the amount received from and out of the sale consideration has gone, either in part or in full, in discharge of debts due to different parties, are not correct. As I mentioned earlier, they are all circumstances which will have to be taken into account in considering the plea that is being raised by the agriculturist when he comes with an application under section 9 (3). As I mentioned earlier, they are all circumstances which will have to be taken into account in considering the plea that is being raised by the agriculturist when he comes with an application under section 9 (3). But the agriculturist, apart from pleading, must adduce evidence and prove, that it is a transaction of debt; and for this purpose the statute lifts the ban, by making the provisions of the Evidence Act not applicable. The adequacy of the consideration fixed under the transaction of sale, may throw considerable light regarding the nature of the transaction, taken along with the other surrounding circumstances attendant upon the transaction in question. 65. Ordinarily, when once I am not inclined to accept the approach made by both the courts, the position must be that I will have to send back the proceedings to the learned District Munsiff for adjudicating upon the matter properly in the light of the opinion expressed by me. But in this case, it will be seen that the first respondent has not adduced any evidence whatsoever. He was relying only on the agreement, Ext. D-1, as well as the document of sale, Ext. D-2. No doubt, in the application filed by him, namely, C.M.P. No. 3905 of 1959, the first respondent has stated that a sum of Rs. 200 received as advance was paid by him for discharge of a debt due to a third party, that was due under Ext. P-5. Therefore, he wants the transaction, namely, Ext. D-2 to be considered a transaction of debt. But the petitioner has stated that at no time was it in the contemplation of the parties to enter into any transaction otherwise than one by way of sale. It will be seen that there is no allegation by the 1st respondent regarding inadequacy of consideration fixed under Ext. D-2. When a party comes to the court and makes an allegation that what outwardly appears to be or represents to be a transaction of sale, is not a transaction of sale, but really creates the relationship of creditor and debtor, the price fixed in the particular document, having due regard to the general market value at the time, will have very great bearing in considering the question as to whether it is really a transaction of sale or whether the parties intended to create the relationship of creditor and debtor. 66. 66. These are all matters of evidence. Unfortunately, notwithstanding the fact that the parties were permitted to adduce evidence by my previous order, the first respondent, in particular, who wants to avail himself of the provisions of section 9 (3), does not appear to have chosen to take advantage of that fact. In fact, it will be seen that the party was prepared to seek the benefit of section 9 (3) solely on the basis that a sum of Rs. 200 received under Ext. D-1 as advance from and out of the consideration went in discharge of a debt under Ext. P-5. More than that, he has not been able to satisfy the court, and that is why the learned District Munsiff says that excepting producing the agreement, Ext. D-1, as well as the sale deed, Ext. D-2, the first respondent has not chosen to adduce any other evidence in support of his case. 67. At the most, it may be stated that, in this case, the first respondent has loosely pleaded that what purports to be a transaction of sale is not a sale but really a document creating the relationship of creditor and debtor. But mere pleading is no proof, because the section gives the right, apart from taking that plea, of adducing evidence and proving the plea that he has raised. Unfortunately, the first respondent has not done anything in that matter. Therefore, I do not think it necessary or worthwhile at this stage to ask the trial court to reconsider this matter. 68. The appellate Judge, it will be seen, without any other material before him, on the ground that a sum of Rs. 200 received by the first respondent as advance under Ext. D-1 has gone for the discharge of a debt under Ext. P-5, has automatically come to the conclusion that section 9 (3) will apply, and he has also permitted the first respondent to pay what he calls the debt� under the provisions of the statute. That cannot certainly be done in the circumstances without further materials having been placed before the court. P-5, has automatically come to the conclusion that section 9 (3) will apply, and he has also permitted the first respondent to pay what he calls the debt� under the provisions of the statute. That cannot certainly be done in the circumstances without further materials having been placed before the court. As I have already mentioned, no such materials have been placed before the Court to establish the plea that appears to have been raised by the first respondent and, therefore, the appellate Judge had no jurisdiction straightaway to give relief merely on the basis that part of the consideration has gone in discharge of a debt under Ext. P-5. 69. The order of the learned Subordinate Judge will have to be set aside. 70. I have also mentioned earlier that the views expressed and the approach made by the learned District Munsiff do not appeal to me. But ultimately he has held that the first respondent is not entitled to relief under section 9(3). I agree only to this limited extent with the final order of the District Munsiff when he dismisses the application of the first respondent, and I make it very clear that I do not in any manner subscribe to the other views expressed by the District Munsiff in his order. 71. Therefore, the result is, the writ petition is allowed in the manner indicated above and subject to the directions and observations contained herein. C.M.P. No. 3905 of 1959 on the file of the District Munsiff of Quilon, filed by the first respondent, will stand dismissed. There will be no order as to costs.