Judgment :- 1. The appellant is the decree-holder in O. S. No. 161 of 1950 of the Sub Court, Kottayam. The decree was passed on 15 21951. In execution of that money decree some properties of the judgment-debtor were sold in court auction on 30 51960, the decree-holder himself purchasing them in part satisfaction. The execution petition not being pursued, was dismissed on 18 7 1960. Thereafter, on 14 71970 the judgment-debtor applied to have the sale set aside under S.20(1) of the Kerala Agriculturists' Debt Relief Act, 1970 (Act 11 of 1970) The sale was set aside On 7121972 the decree-holder submitted an application for executing the balance of the decree amount. The learned Subordinate Judge dismissed the application as barred by limitation, as per his order dated 30 11974. The decision of the execution court was confirmed by the District Judge, Kottayam, in his judgment dated 1112-1974 in A. S. No. 136 of 1974. 2. In this second appeal the counsel for the appellant relies mainly on the provisions contained in S.20 of Act II of 1970 to support the contention that the execution petition was not barred by limitation According to the counsel once the sale is set aside on an application under Sub-section (1) of S.20 of Act 11 of 1970, the decree revives, and "the parties are again placed in the position they held before the date of sale and the entire decree is brought back to life and the question of limitation does not arise at all" in view of the provisions contained in sub-section (9) of S.20. I am unable to agree with this line of reasoning.
I am unable to agree with this line of reasoning. S.20, as the very caption would indicate, concerns only with "Sales of immovable property to be set aside in certain cases"- The relevant portion of sub-section (1) of S.20 reads as follows: "(1) Where any immovable property in which an agriculturist had 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 in liquidation 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 such commencement 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." (emphasis supplied). The correctness of the order setting aside the sale passed by the court is no longer open to attack, and, as a matter of fact, no argument is also advanced in that direction. The sole question is, whether, because the sale happened to be set aside on an application under sub-section (1) of S.20 of the Act, the decree revives, and the decree-holder gets enlargement of time for executing the unrealised portion of the decree which would have otherwise been barred by limitation under the provisions of the Limitation Act.
The sole question is, whether, because the sale happened to be set aside on an application under sub-section (1) of S.20 of the Act, the decree revives, and the decree-holder gets enlargement of time for executing the unrealised portion of the decree which would have otherwise been barred by limitation under the provisions of the Limitation Act. It is in this context that reliance is placed by the appellant on sub-section (9) of S.20 of the Act, the relevant portion of which reads as follows: "(9) 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." To understand the true meaning of the provisions contained in sub-section (9) it is necessary also to read sub-section (8) inasmuch as sub-section (9) is a corollary to sub-section (8). Sub-section (8) reads as follows: "(8) In respect of any sale of immovable property which has not been confirmed, the judgment-debtor, if he is an agriculturist, 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." (emphasis supplied). The subsequent instalments referred to in sub-section (9) are the instalments falling due after the first instalment mentioned in sub-section (8). It is not the case of the appellant that the sale of the property in the instant case was in terms of sub-section (8) of S.20 of the Act. That being the position, sub-section (9) has no application. Even otherwise, on the sale being set aside under subsection (1). what the judgment-debtor is required to pay is the balance purchase amount with interest due on the instalments as and when they fall due. It has no reference to the "decree debt" which is covered by sub-section (8) of S.20 of the Act. 3. Counsel for the appellant then wanted to argue that the order dismissing the execution petition passed on 18 71960 was only a ministerial order and that the court should have considered that the execution petition was still pending.
It has no reference to the "decree debt" which is covered by sub-section (8) of S.20 of the Act. 3. Counsel for the appellant then wanted to argue that the order dismissing the execution petition passed on 18 71960 was only a ministerial order and that the court should have considered that the execution petition was still pending. For one thing, if as a matter of (act the decree-holder considered that the execution petition was still pending, it is pertinent to ask why a new application was filed by him Secondly, it does not appear that this point was raised or argued either before the execution court or the first appellate court. This contention also, therefore, does not deserve any serious consideration. For the foregoing reasons the execution second appeal is dismissed, however, in the circumstances of the case, without any order as to costs. Dismissed.