Research › Browse › Judgment

Kerala High Court · body

1965 DIGILAW 109 (KER)

Eapen Thomas v. Varkey Thomas

1965-05-25

M.S.MENON, V.P.GOPALAN NAMBIYAR

body1965
Judgment :- 1. The question raised in this appeal is short, but not free from difficulty. 2. The decree-holder auction purchaser, who is the appellant before us obtained a decree for money in O.S. No. 174 of 1102, District Court, Alleppey, charged on the decree scheduled properties, on 17-8-1108. A receiver was appointed in respect of the properties on 12-2-1118. The properties comprising an extent of 48.86 acres were sold and purchased by the appellant for a sum of Rs. 10,208 on 13-12-1120. On 4-1-1121, the judgment-debtor filed C.M.P. No. 77 of 1121 under 0.21 R.87 of the Travancore C.P.C. (corresponding to 0.21 R.90 of the Indian Code). The same was dismissed by the trial court; but on appeal in C.M.A. No. 138 of 1953, the High Court of Travancore-Cochin remanded the petition for fresh disposal. The petition was re-heard and dismissed on 18-7-1958 and the sale was confirmed on that date. 3.Against the order dated 18-7-1958 the 15th defendant preferred C.M.A. No. 76 of 1958 to this Court. 4.Meanwhile, on 14-7-1958, the Kerala Act 31 of 1958 (hereinafter referred to as the Act) came into force. On 6-1-1959, the 15th defendant filed C.M.P. No. 95 of 1959 under S.22 (3) of the Act, and prayed for setting aside the sale. The maintainability of the said petition was considered as a preliminary point and by an order dated 16-7-1960 the court held that the petition was maintainable. Against the said order the present appellant filed C.R.P. No. 1012 of 1960 in this Court. 5. While the above C.R.P. was pending, C.M.A. No. 276 of 1958 was heard on 29-7-1960, and dismissed; whereupon the 15th defendant applied by C.M.P. No. 3924 of 1960 for review of the order. 6. C.M.P. No. 3924 of 1960 was heard along with the C.R.P. No. 1012 of 1960. The C.R.P. was dismissed. C.M.P. No. 3924 of 1960 was allowed, the order in C.M.A. No. 276 of 1958 was set aside, and the order passed by the lower court confirming the sale was vacated. It was made clear that the sale itself was not set aside. C.M.P. No. 77 of 1121 and C.M.P. No. 95 of 1959 were remitted to the Sub Court, Kottayam with a direction to hear and dispose of both the petitions together. After the said order, the court below, by its order, under appeal allowed both the C.M.Ps. It was made clear that the sale itself was not set aside. C.M.P. No. 77 of 1121 and C.M.P. No. 95 of 1959 were remitted to the Sub Court, Kottayam with a direction to hear and dispose of both the petitions together. After the said order, the court below, by its order, under appeal allowed both the C.M.Ps. In C.M.P. No. 77 of 1121 it held that there has been gross under-valuation resulting in substantial injury, and that therefore, the sale was liable to be set aside. In C.M.P. No. 95 of 1959 it held that the conditions of S.22(3) of the Act had been complied with and that the 15th defendant was entitled to relief. Against these orders the above appeal has been preferred. 7. We may at once state that we cannot sustain the order of the court below in C.M.P. No. 77 of 1121. The said order was once appealed against in this court, and by an elaborate judgment in C.M.A. No. 276 of 1960 dated 29-7-1960 this court held that there was neither any material irregularity nor any substantial loss. We do not understand the order passed in C.M.P. No. 3924 of 1960 reviewing and setting aside the above order, as throwing open the entire field of enquiry for fresh investigation. It was made clear in the said order that the sale was not set aside but only its confirmation was. We understand this to have been done, only for the limited purpose of considering and disposing of C.M.P. No. 95 of 1959 filed under S.22 (3) of the Act. We hold therefore that the sale was immune from attack under the provisions of the C.P.C. 8. The next question is whether on the facts and circumstances detailed above, the 15th defendant was entitled to the benefits of S.22(3) of the Act. S.22(3) of the Act reads: "In respect of any sale of immovable property which has not been confirmed, the agriculturist judgment-debtor shall be entitled to pay the decree debt in accordance with the provisions of S.4 and 5, and on the deposit of the first instalment thereof, the sale shall be set aside. S.22(3) of the Act reads: "In respect of any sale of immovable property which has not been confirmed, the agriculturist judgment-debtor shall be entitled to pay the decree debt in accordance with the provisions of S.4 and 5, and on the deposit of the first instalment thereof, the sale shall be set aside. Where the judgment-debtor fails to deposit any of the subsequent instalments, the decree-holder shall be entitled to execute the decree and recover the defaulted instalment or instalments in accordance with the provisions of this Act." It is stressed by counsel for the appellant that the "deposit" contemplated by the section is a condition precedent to the setting aside of the sale, It is pointed out that no deposit was in fact made by the 15th defendant prior to setting aside the sale. By Para.3 & 4 of his petition, C.M.P. No. 95 of 1959, the petitioner stated thus: "The executing court on 12-2-1118 appointed a receiver for the decretal properties in the possession of the petitioner and the said properties are even now in the possession of the Court Receiver and large amounts are being deposited in Court towards the above decree debt. The principal amount as per the decree is Rs. 3,000/- and the same the petitioner is willing to pay as provided in the Act 31 of 1958. But as large amounts are in court deposit the amounts legally due to the decree-holder may be paid out of the amounts deposited by the receiver in court and satisfaction of the decree may be recorded. The balance amount in court deposit may be ordered to be paid to the petitioner and the properties in the possession of the receiver redelivered to the petitioner." The question posed is whether a prayer for payment out of the deposits made by the Receiver would satisfy the conditions of S.22(3) of the Act. Giving the matter our careful consideration, we are satisfied, that, in the circumstances, it would. At the material time when C.M.P. No. 95 of 1959 came up for consideration the position was that the sale in favour of the appellant had not been confirmed, the order in C.M.P. No. 3924 of 1960 having vacated the order of confirmation of sale. Giving the matter our careful consideration, we are satisfied, that, in the circumstances, it would. At the material time when C.M.P. No. 95 of 1959 came up for consideration the position was that the sale in favour of the appellant had not been confirmed, the order in C.M.P. No. 3924 of 1960 having vacated the order of confirmation of sale. The appellant therefore did not obtain any "indefeasible right," as pointed out by the Privy Council in Raghunandan Prasad Singh v. Commissioner of Income-tax, Bihar and Orissa (AIR. 1933 P.C.101 at 106). The properties in the hands of the Receiver were in custodia legis and the amounts deposited must be deemed to belong to the party ultimately found to be entitled to the property. As a result of the court's order setting aside the sale, the 15th defendant was entitled to the property and therefore the benefit of the receiver's deposits should also enure to him. 9. The further question is, did the deposit precede the setting aside of the sale? It is argued that it is only on the making of the order that the ownership of the property and of the deposits made by the Receiver are settled and therefore the deposit could not be said to have preceded the order. While we see force in the argument on the strict wording of S.22(3) of the Act, we are satisfied that so to construe it, would be to make a caricatural distortion of its provisions. On the making of the order, eo instanti the receiver's deposit enured to the benefit of the 15th defendant. His petition contained in Para.3 and 4 a prayer for payment out of the deposit. 10. Ameliorative legislation of the type of the Kerala Act 31 of 1958 must be construed liberally in favour of the beneficiaries. We feel that the present is pre-eminently a case where, construing the provisions of the Act in the light of the above principle, we should hold that the conditions of the section have been satisfied. We do so. 11. We accordingly confirm the order of the court below and dismiss the appeal. In the circumstances, there will be no order as to costs. No objection has been raised before us to the filing of only one appeal against a common order on two different petitions. Dismissed.