Ittan v. Subramania Iyer — 1965 DIGILAW 222 (KER)

Judgment :- 1. This O.P. has been referred to a Division Bench by our learned brother Govindan Nair, J., in view of the importance of the two questions arising for determination. The questions are: (1) Whether the petitioner is a transferee pendente lite of the judgment-debtor within the meaning of S.22 (1) of the Kerala Act XXXI of 1958; (hereinafter referred to as the Act) and (2) Whether the time prescribed if any, for making the deposit for preferring an application under S.22 (1) of the Act can be extended. 2. There was a decree dated 14-6-1937 in O.S. No. 509 of 1112, Munsiff's Court, Meenachil, on the basis of a hypothecation. In pursuance of the said decree, property of the extent of 1.70 acres was sold on 22-1-1955 and purchased by the decree-holder for Rs. 750/-. The petitioner in the O.P., it is agreed, is a transferee pendente lite from one of the judgment-debtors under the said decree, having purchased 1.32 acres out of the property sold. The Kerala Act XXXI of 1958 came into force on 14-7-1958. On 13-1-1959 the petitioner filed an application, C.M.P. 237/59 under S.22 of the Act to set aside the sale in so far as it related to the extent of 1.32 acres. On 15-1-1959 he deposited one-half of the purchase-money, calculated pro rata on the basis of the 1.32 acres in which alone he was interested. The deficit amount of Rs. 76 was deposited on 25-9-1961, C.M.P. No. 5582/61 was filed to amend the earlier petition, so as to set aside the sale in its entirety, and C.M.P. No. 5584/61 was filed to condone delay. These two C.M.Ps. were allowed by the trial court. Thereafter, the main C.M.P. No. 237 of 1959 was dismissed on the ground that the petitioner was not a judgment-debtor entitled to the benefits of S.22 of the Act. The order is evidenced by Ext. P-1. 3. Meanwhile, it would appear that appeals had been preferred against the orders passed in C.M.P. Nos. 5582 and 5584 of 1961. By the time the said appeals came on for hearing, the main C.M.P. No. 237/59 had itself been dismissed, and therefore these appeals were not pressed and were dismissed. Thereafter the petitioner preferred an appeal to the Sub Court against the dismissal of C.M.P. No. 237 of 1959. 5582 and 5584 of 1961. By the time the said appeals came on for hearing, the main C.M.P. No. 237/59 had itself been dismissed, and therefore these appeals were not pressed and were dismissed. Thereafter the petitioner preferred an appeal to the Sub Court against the dismissal of C.M.P. No. 237 of 1959. That court affirmed the judgment of the trial court on the ground that the petitioner was not a judgment-debtor. It was also held that the deposit contemplated by S.22 of the Act had to be made within one year and there was no power to grant any extension of time for making the said deposit. It was the view of the Sub Court that C.M.P. No. 237 of 1961, ought to have been dismissed on this ground also. The order of the Sub Court is evidenced by Ex. P-2. The O.P. has been filed to quash Exts. P-1 and P-2. 4. The first of the questions arising for consideration is whether the deposit contemplated by S.22(1) had to be made within one year, and if not so made, whether the time for doing so could be extended. S.22(1) of the Act, in so far as it is material, may here be conveniently extracted: "22. P-1 and P-2. 4. The first of the questions arising for consideration is whether the deposit contemplated by S.22(1) had to be made within one year, and if not so made, whether the time for doing so could be extended. S.22(1) of the Act, in so far as it is material, may here be conveniently extracted: "22. (1) Where any immovable property in which an agriculturist had an interest has been foreclosed or sold in execution of any decree for the recovery of a debt then notwithstanding anything in the Indian Limitation Act, 1908, or in the Code of Civil Procedure, 1908, or in the Revenue Recovery Act for the time being in force, and notwithstanding that the sale has been confirmed such judgment-debtor may (a) in the case of a sale where the purchaser is the decree-holder, deposit one-half of the purchase money together with the costs of execution, where such costs were not included in the purchase money, and apply to the Court within one year of the commencement of this Act to set aside the sale of the property and the Court shall, if satisfied that the applicant is an agriculturist entitled to the benefits of this Act> order the sale to be set aside and the Court shall further order that the balance of the purchase money shall be paid in- ten equal half-yearly instalments together with interest accrued due on such balance outstanding till the date of payment of each instalment at five per cent per annum, the first instalment being payable within a period of six months from the date of the order of the Court;" 5. Going by the language of the section, it would appear that the prescription of time of one year applies only to the application to the Court, and not to the depositor the amount. Our learned brother Govindan Nair, J. was also inclined to take this view. Although this might be so, it seems to us reasonable to construe the section as requiring that the deposit must, be either anterior to, or at least synchronise with, the application. The question then arises, whether there is any power to extend the time for deposit beyond the time prescribed for filing the application ? Although this might be so, it seems to us reasonable to construe the section as requiring that the deposit must, be either anterior to, or at least synchronise with, the application. The question then arises, whether there is any power to extend the time for deposit beyond the time prescribed for filing the application ? S. 20, Clause.2 of the Act provides: "The provisions of S.5 of the Indian Limitation Act, 1908 shall be applicable to all applications and appeals filed under this Act." 6. It is argued that the extension of time under the provisions of S.5 of the Indian Limitation Act, can be had only in respect of applications and appeals under the Act and not for the doing of any physical act such as the making of a deposit. We are unable to agree. It appears to us that the deposit is so closely related to the application as to form an integral part thereof. If the time for filing the application was regarded by the legislature as dynamic (in the sense of being capable of extension), we cannot regard the time for making the deposit as being static. It appears to us that the power to grant extension of time in respect of the filing of the application must involve as a necessary corollary, the power to extend time for making the deposit. We are therefore of the view that time for making the deposit contemplated by S.22(I) of the Act, can be extended. 7. Turning next to the second of the questions, the Act does not define the term "judgment-debtor". S.2(c) of the Act defines "debt" and the definition covers "any liability in cash or in 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 " S. 2 (fff) reads: "melpattamdar", "mortgagee", "debtor" and "creditor" shall include the heirs, legal representatives and assigns of the melpattamdar, mortgagee, debtor and creditor respectively." And Explanation to S.22 (3) of the Act, in so far as it is material enacts: ' "judgment-debtor" shall include a debtor from whom money was due to a banking company as defined in the Banking Companies Act. 1949, in liquidation and a person from whom the entire amount due under a decree has been realised by the sale of his immovable property." 8. It will be noticed that the definition "debt" includes a "decree debt" and it appears that a "debtor" under the Act - which term again is not separately defined - would include a "judgment-debtor". Then it is provided that the term "debtor" shall include heirs, legal representatives and assigns. Going by the provisions of the Act alone, it seems to us that there is sufficient indication that the expression judgment-debtor includes legal representatives and assigns. We find nothing to exclude from the term "assigns" a transferee pendente lite such as the petitioner. On the provisions of the statute, we are therefore of the opinion that a transferee pendente lite from the judgment-debtor is himself a judgment-debtor entitled to apply under the provisions of S.22(1) of the Act. 9. Even assuming that the term "judgment-debtor" in S.22(1) of the Act is not to be understood in any liberal sense, but only in the sense in which that expression has been defined in the CPC., we are still of the opinion that the petitioner in this case would fill the bill. S.2(10) of the CPC. reads: "judgment-debtor" means any person against whom a decree has been passed or an order capable of execution has been made." In Parmeshari Din v. Rama Charan and others (AIR. 1937 P.C. 260), the question arose whether a transferee from the mortgagor pendente lite could be regarded as judgment-debtor. The Judicial Committee observed: "It is then said that the appellant was not a party to the decree which is sought to be executed against him. But he took the property from the defendant pendente lite and must be treated as his representative-in-interest. He is bound by the result of the decree. If he had not obtained possession of the property from the defendant, the latter would have been required to deliver it to the plaintiffs. And the mere circumstance that he got possession from the defendant in pursuance of a transfer, which was invalid as against the plaintiffs, cannot detract from their rights under the decree. As observed by Cranworth, L. C. in 1 De G & J. 566. And the mere circumstance that he got possession from the defendant in pursuance of a transfer, which was invalid as against the plaintiffs, cannot detract from their rights under the decree. As observed by Cranworth, L. C. in 1 De G & J. 566. "pendente lite neither party to the litigation can alienate property in dispute so as to affect his opponent." The decree-holders are, therefore, entitled to execute the decree against the appellant, who is the representative of their judgment-debtor." In Ayipuzha Parvathi Amma v. Subramania Pattar (AIR. 1940 Mad. 944) it was ruled by a Division Bench of the Madras High Court, considering the analogous provisions of S.23 of the Madras Agriculturists' Relief Act IV of 1938 that the liability of a person as subsequent alienee of part of the hypotheca to discharge the mortgage is a debt liable to be scaled down under the provisions of the Act. Patanjali Sastri, J., (as he then was) observed: "We are therefore of opinion that the petitioner is a judgment-debtor as defined in S.2(10) CPC. assuming that the term, not having been otherwise defined, is to be understood in no wider sense in the Madras Act 4 of 1938." In the Madras case, the transferee was a party to the decree; but in the case before the Privy Council, he was not. 10. Our attention was drawn to the decision in Saila Sala Dasai v. Sm. Nirmala Sundari Dasi (AIR. 1958 SC. 394). Referring to S.146 of the CPC. it was observed: "We are not disposed to construe S.146 narrowly in the manner contended for by counsel for the 1st respondent. That section was introduced for the first time in the Civil Procedure Code, 1908, with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally so as to advance justice and not in any restricted or technical sense." In Narayanan v. Govindan (1961 KLT. 312), Raman Nayar; J. observed: "Here the first petitioner was not eo nomine a judgment-debtor but since; as a purchaser pendente lite, the mortgage decree was enforceable against the property in her hands, it might be said that she is a "person against whom a decree has been passed or an order capable of execution has been made" and therefore a judgment-debtor as that term is defined in S.2 (10) of the CPC. This seems to be a legitimate extension of the principles laid down in AIR. 1939 Mad. 186, AIR. 1953 SC. 370 and 1957 KLT. 209 (to mention only a few of the decisions, cited at the Bar) that where money is recoverable from property in the hands of a person there is a liability due from him although he might not be personally liable." 11. To sum up, we are of the view that there is sufficient indication in the provisions of the Act themselves to show that a transferee pendente lite from the judgment-debtor is himself a judgment-debtor, entitled to apply under S.22(1) of the Act. We are further of the view even, if the definition of the term "judgment-debtor" given in the CPC. is to govern an application under S.22(1) of the Act, a transferee pendente lite is covered by the said expression, having regard to the provisions of S.146 of the CPC. and the decisions noticed supra. 12. It follows that the view taken in Ext: P-2 that the petitioner is not a judgment-debtor cannot be sustained and must be quashed. 13. The Sub Judge however has not dealt with the question as to whether, on the merits, the delay in making the deposit could be excused.. We therefore quash Ext. P2 and direct the Sub Court, Meenachil to take back A.S. No. 54 of 1962 on its file and dispose of the same according to law on the footing that the petitioner before us is a judgment-debtor and that it is open to the court to extend the time for making the deposit contemplated by S.22(1) of the Act. In the said appeal, the Sub Court will consider on the merits, and subject to any objections that may be urged whether the extension of time allowed by the trial court in C.M.P. 5584 of 1961 was justified or not and pass appropriate orders. 14. The O.P. is allowed as above. In the said appeal, the Sub Court will consider on the merits, and subject to any objections that may be urged whether the extension of time allowed by the trial court in C.M.P. 5584 of 1961 was justified or not and pass appropriate orders. 14. The O.P. is allowed as above. There will be no order as to costs. Allowed.