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1965 DIGILAW 274 (KER)

Parameswaran Pillai v. Kochukunju Panicker

1965-09-24

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

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Judgment :- 1. The question referred to us for decision in this O.P. is whether an order under S.8 of the Kerala Act 31 of 1958 can be the subject-matter of an application for amendment under S.7(2) read with S.7(1) of the Act. 2. The petitioner was an agriculturist-debtor who obtained an order under the provisions of S.8 of the Act which is evidenced by Ext. P-4 dated 25-10-1960. After the amendment of the Kerala Act 31 of 1958 by Act 2 of 1961, he applied for amendment of the said order under the provisions of S.7(2) of the Act. The same was dismissed by the Subordinate Judge of Alleppey, and an appeal from the said decision was dismissed by the District Judge. These orders have been exhibited as Exs. P-2 and P-3 and this writ petition has been filed to quash these orders. 3. S.7 of the Act reads as follows: 7. Amendment of certain decrees-(1) Where before the commencement of this Act, a Court has passed a decree for repayment of a debt, it shall, on the application of any judgment-debtor who is an agriculturist or on the application of the decree-holder apply the provisions of this Act to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be. (2) The provisions of sub-section (1) shall also apply to cases where, after the commencement of this Act, a Court has passed a decree for the repayment of any debt." In order to obtain the benefits of S.7(2) of the Act two conditions have to be satisfied namely: (1) There should be a decree passed by a Court after the commencement of the Act; and (2) The said decree should be for repayment of a debt." 4. The provisions of S.8(5) of the Act seem to indicate that an order passed thereunder may well be regarded as an order for repayment of a debt. But the question is whether the order under S.8 could be said to be a decree so as to attract S.7(2) of the Act. We are of opinion that such an order cannot be said to be a decree. 5. But the question is whether the order under S.8 could be said to be a decree so as to attract S.7(2) of the Act. We are of opinion that such an order cannot be said to be a decree. 5. S.8(11) of the Act reads as follows: "(11) The order passed by the Court on an application filed under this section shall have the force of a decree of a civil court of competent jurisdiction and shall be executable as such." 6. It appears to us that the indication available from this sub-clause is that an order passed under S.8 was not to be regarded as a decree but was to have the force of a decree for the limited purpose of execution. The said conclusion is only reinforced by the provisions of S.23A of the Act which provides for appeals. Under the said section, an appeal against an order under S.8 is treated as only an appeal against an order and not as one against a decree. Reference may also be made to S.11(3), and S.11A(7), which clearly state that orders passed thereunder, shall be deemed to be a decree. Such is not the language used in S.8 of the Act. 7. There is also the decision in S.A. No. 653 of 1964 by our learned brother Raman Nayar, J. in which the learned judge has stated: "Sub-section (11) of S.8 only says that an order under that section shall have the force of a decree of a civil court of competent jurisdiction; it does not say that such an order is a decree or shall be deemed to be a decree; and the words "and shall be executable as such" following the words saying that the order shall have the force of a decree clearly indicate that the order is to have the force of a decree for the limited purpose of execution." 8. We are in entire agreement with the above observations of the learned judge. 9. It follows therefore that the orders evidenced by Exts. P-2 and P-3 are correct. 10. This O. P. fails and is dismissed; but, in the circumstances, without costs. Dismissed.