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1972 DIGILAW 117 (KER)

KRISHNAN NARAYANAN v. GOVINDAN KUMARAN

1972-06-15

K.BASKARAN

body1972
Judgment :- 1. This revision under S.115 of the Code of Civil Procedure arises out of an application filed under S.20(1) of the Kerala Agriculturists' Debt Relief Act, 1970 (Act 11 of 1970). The plaintiff mortgagee filed the suit O. S. No. 159 of 1957 on the file of the Munsiff's Court, Kottarakkara, for recovery of the amount due under a hypothecation bond. In execution of the decree, the plaintiff decree-holder himself purchased the equity of redemption. Thereafter the decree-holder assigned his interest in the property to the revision petitioner who, as assignee decree-holder, filed a suit O.S. No. 22 of 1969 for redemption. 2. After the Kerala Agriculturists' Debt Relief Act, 1970 came into force, the first defendant (judgment-debtor) filed E. A. No. 682 of 1970 under S.20(1) of the Act for setting aside the court sale of decree schedule property. The learned Munsiff passed an order allowing the application. In appeal, the order has been confirmed. 3. Only one point, and that is a point which does not appear to have been specifically taken in the counter statement or argued before the learned Munsiff or Subordinate Judge, has been pressed before me. The contention of the learned counsel appearing for the revision petitioner is that S.20(1) of Act 11 of 1970 has no application where an application is made against an assignee decree-holder. Though this point has not been urged before the lower courts, I am considering it in this revision being a question of law. S.20(1) of Act 11 of 1970 reads as follows: "20. Sales of immovable property to be set aside in certain cases. (1) Where any immovable property in which an agriculturist bad an interest has been sold in execution of any decree for recovery of a debt or sold under the provisions of the Revenue Recovery Act for the time being in force for the recovery of a debt due to a banking company is liquidation (a) on or after the 1st day of November, 1956; or (b) before the 1st day of November, 1956, but the possession of the said property has not actually passed before the 20th day of November, 1957, from the judgment-debtor to the purchaser, and the decree-holder is the purchaser, then notwithstanding anything in the Limitation Act, 1963 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 or the legal representative of such judgment-debtor may 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 six months from the date 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, 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 the interest accrued due on such balance outstanding till the date of payment of each instalment, at six per cent per annum, the first instalment being payable within a period of six months from the date of the order of the court." The argument of the learned counsel is that in the instant case the application made is against an assignee decree-holder, and as such, the petition is not maintainable under S.20(1) of the Act. According to the learned counsel, the provisions of S.20(3) of Act 11 of 1970 alone would apply to the facts of the case, and therefore the learned Munsiff ought to have dismissed the application in as much as the requirements under S.20(3) have not been complied with. 4. I find no merit in the contention raised by the learned counsel. For one thing, from the narration of the facts by the appellate court I find that the decree-holder himself purchased the equity of redemption in court auction and the assignment in favour of the partitioner herein took place only thereafter. To attract S 20(1) of the Act, what is required is that the purchaser in court auction should be the decree-holder. That condition is satisfied in this case. The subsequent transfer after the purchase in court auction by the decree-holder, in my view, is of no consequence for the purpose of S.20 (1). 5. That apart, even where the auction purchaser is the assignee decree-holder, I should hold that S.20 (1) applies. That condition is satisfied in this case. The subsequent transfer after the purchase in court auction by the decree-holder, in my view, is of no consequence for the purpose of S.20 (1). 5. That apart, even where the auction purchaser is the assignee decree-holder, I should hold that S.20 (1) applies. I have bo doubt, the intention of the legislature for the purpose of S.20 (1) was only to have a classification of the parties involved into two, namely creditors on the one side and the debtors on the other, and the transferee of a decree was not intended to be excluded from the side of the creditors, 6. Counsel appearing for the respondent herein has drawn my attention to the decision in Karthiyayini Amma v. Moidu (1963 KLT. 465). In the ruling given by Joseph J. in the above case, it was held that the decree-holder includes transferee of the decree for the purpose of S.22 (1) of the Agriculturists Debt Relief Act (31 of 1958 Kerala). In arriving at that conclusion His Lordship held that though the term'decree¬holder' has not been defined in the Act, the definition of the term'decree-holder' given in the Code of Civil Procedure read with S.146 of the CPC., would make it clear that for the purpose of S.22 (1) of the Act a decree-holder should be considered to include a transferee of the decree. I am in respectful agreement with this view expressed by Joseph .J. 7. Learned counsel for the revision petitioner has then argued that there is difference in the relevant provisions contained in Act 31 of 1958 and Act 11 of 1970. I do not find any substance in this contention in so far as it relates to the matter in issue. It has been pointed out that in S.20 (4) of Act 11 of 1970 there is a provision that opportunity to be heard has to be given to persons likely to be affected by the order that may be passed by the court under subsections (1), (2) or (3) of S.20, and that'decree-holder' and 'transferee of decree' are separately mentioned therein as persons entitled to notice. True it is, in the corresponding provisions contained in S.22 (1) of Act 31 of 1958 there is no mention about the transferee of a decree; but that, in my opinion, makes no difference in construing the term 'decree-holder' used in S.20 (1) of Act 11 of 1970 and S.22(1) of Act 31 of 1958. In both cases the term 'decree-holder' shall undoubtedly include 'transferee of a decree' also. 8. In fact, the right to apply for setting aside the sate is conferred under S.20(1) of the Act and what is contained in sub-section (4) is only certain procedure to be followed by the court in regard to the hearing and disposal of the application. The transferee of a decree also is a person who is likely to be affected by the order that may be passed by the court in the petition for setting aside the sale. It is precisely for that reason that it is laid down in S.20 (4) that not only the decree-holder but also the transferee of a decree, if any, also is to be given notice of the application. In the result, I hold that the term 'decree-bolder' used in sub-section (1) of S.20 of Act 11 of 1970 by implication includes transferee of a decree also. Sub-section (3) of S.20 has application only where the auction purchaser is a stranger, not the decree-holder or an assignee decree-holder. It is only in such cases the full purchase money as referred to in sub-section (3) has to be deposited for the purpose of getting the sale set aside. Where the auction purchaser is the decree-bolder or his assignee, S.20 (1) alone is attracted and it will be sufficient if the applicant deposits half the purchase money as mentioned in that sub-section. There is no merit in this revision petition and it is, therefore, dismissed with costs.