V. M. Madhavi Amma v. C. K. Madhavi Amma — 1979 DIGILAW 47 (KER)

ORDER George Vadakkel, J. 1. The revision petitioner who is the 2nd judgment debtor filed an application claiming the benefits under the Kerala Debt Relief Act, 1977. This was when execution was taken out by the holder of a decree in a suit for partition for realisation of a sum of Rs. 2,867.51 from respondents Nos. 1 to 3 in the EP. The sum sought to be recovered as aforesaid was awarded by the decree as profits of the property (Imem-Zm-bw) payable by these judgment debtors to the decree holder. The decree holder contended that the decree for money as aforesaid would fall within exception (g) to S.2(3) of the Act defining the word 'debt'. Under clause (g) aforesaid 'any liability for which a charge is provided under sub clause (b) of clause (4) of S.55 of the Transfer of Property Act, 1882' is not a debt falling within the purview of the definition clause in S.2(3) of the Act. On that basis it was contended that the revision petitioner is not entitled to the benefits of the Act. The lower court upheld the contention advanced by the decree holder as aforesaid. Hence this revision at the instance of the 2nd judgment debtor. 2. A preliminary contention has been advanced on behalf of the respondents that after the lower court passed the order under revision, that court has sold the property in execution of the above said decree, that the 5th respondent herein has purchased the same in the court auction, and that therefore, this revision petition has become infructuous in so far as, according to the learned counsel for them, even assuming the order under revision is wrong the only course open to that court is to confirm the sale subject to the result of the order that may be passed on an application that has been filed by the revision petitioners under O.21 R.90 of the Code. The learned counsel in support of this contention relies on Janak Raj v. Gurdial Singh ( AIR 1967 SC 608 ) and Hukumchand v. Bansilal ( AIR 1968 SC 86 ). 3. In the Hukumchand case ( AIR 1968 SC 86 ), the respondents therein mortgaged their properties to a Cooperative Society. The Registrar of Cooperative Societies passed an award therein in favour of the society. This award was put in execution in a civil court. 3. In the Hukumchand case ( AIR 1968 SC 86 ), the respondents therein mortgaged their properties to a Cooperative Society. The Registrar of Cooperative Societies passed an award therein in favour of the society. This award was put in execution in a civil court. In execution the said properties were sold on 7th April 1958. The appellant bid in auction. The respondents filed an application under O.21 R.90 on 3rd May 1958. During the course of these proceedings all the parties including the auction purchaser agreed to have the sale set aside on the respondents depositing certain amount -- the decretal amount and the auction -- purchaser's commission -- on or before 21st November 1958. The court passed an order in terms thereof. The respondents on 20th November 1958 sought for an extension of the time fixed for making the deposit by one day on the ground that 21st November 1958 happens to be a holiday. The decree holder society and the auction purchaser opposed it. The execution court dismissed this application on 22nd November 1958 and confirmed the sale the same day. The Supreme Court held this was right as S.148 of the Code would not be attracted to time fixed by agreement of parties, and that sale having been confirmed O.34 R.5 would also be of no assistance to the respondents -- since no amount was deposited before confirmation. It is in these circumstances that the Supreme Court said:- "We have to interpret O.34 R.5 and O.21 R.92 harmoniously and on a harmonious interpretation of the two provisions it is clear that though the mortgagor has the right to deposit the amount due at any time before confirmation of sale, there is no question of his being granted time under O.34 R.5 and if the provisions of O.21 R.92(1) apply the sale must be confirmed unless before the confirmation the mortgagor judgment debtor has deposited the amount as permitted by O.34 R.5. We may in this connection refer to the decision of this Court in Janak Raj v. Gurdial Singh C. A. No. 1322 of 1966, dated 8th November 1964 = (reported in AIR 1967 SC 608 ) where it has been laid down that once the conditions of O.21 R.92(1) are complied with, the executing court must confirm the sale." I don't think that this case has any application to the case on hand. 4. 4. In the other case Janak Raj v. Gurdial Singh ( AIR 1967 SC 608 ), in execution of an ex parte decree immovable properties were sold. A stranger auction purchaser purchased the property. He sought to have the sale confirmed. In the meanwhile the ex parte decree was set aside. The defendant therefore contended that the ex parte decree having been set aside the sale cannot be confirmed. The Supreme Court said that once sale has taken place, subject to the provisions of R.89, 90 and 91 in O.21, the sale has to be confirmed as required by R.92 therein. From Para.25 of the judgment it is clear that the decision is rested on the facts of that case. I will read that paragraph: "Lastly, it was contended that the amendment of S.47 of the Code of Civil Procedure altered the whole situation inasmuch as by the Amending Act of 1956 auction purchasers are to be treated as parties to the suit. We are not here concerned with the question as to whether restitution, can be asked for against a stranger auction purchaser at a sale in execution of a decree under S.144 of the Code of Civil Procedure and express no opinion thereon. In our opinion, on the facts of this case, the sale must be confirmed". 5. It will be advantageous here to refer to the earlier and larger Bench Decision of the Supreme Court in Binayak Swain v. Ramesh Chandra ( AIR 1966 SC 948 ). In that case, in execution of an ex parte decree passed in appeal by the District Judge the property of the judgment debtor was sold and purchased by the decree holder himself; the decree of the District Judge was set aside by the High Court and the suit was remanded for rehearing and fresh disposal. The judgment debtor then invoked S.144 of the Code. The Supreme Court said that irrespective of the fact that subsequently after remand, the suit was decreed, the defendant was entitled to invoke S.144 and seek restitution. Ramaswami, J. speaking for the Court said as follows:- "We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was made. Ramaswami, J. speaking for the Court said as follows:- "We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was made. The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from. It should be noticed, in the present case, that the properties were purchased by the decree holder himself in execution of the ex parte decree and not by a stranger auction purchaser.'' 6. In Binayak Swain's Case referred to above the Supreme Court quoted with approval the following passage from Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan (ILR 10 All 166 (PC)) "It appears to their Lordships that there is a great distinction between the decree holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the scale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order." It is this distinction which has been extended to bona fide purchasers from decree holder auction purchasers also see S. Chokalingam v. N. S. Krishna (AIR 1964 Mad. 404 ) that was contended in Janak Raj v. Gurdial Singh ( AIR 1967 SC 608 ) as no more obtained after the amendment of S.47 of the Code by the Amending Act of 1956, and the Supreme Court said that in that case that Court was not concerned with that question, as on the facts of that case that court was of the view that the sale must be confirmed. The principle of restitution is, as stated in Bhagawant Singh v. Sri Kishen Das ( AIR 1953 SC 136 (139)) that 'on the reversal of a judgement the law raises an obligation on the party to the record who received the benefit of the judgement to make restitution to the other party for what he has lost and that it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case.' 7. I am not in this case concerned with the question as to whether the revision petitioners are entitled to restitution on the facts and in the circumstances of this case (and I make it clear that I have not decided that question) but only with the question as to whether, in the event of the order under revision being reversed, the revision petitioners would be precluded from establishing facts entitling them restitution so that this C.R.P. could be said to be an infructuous one as contended for on behalf of the respondents since it would be a futile exercise to examine the merits of the case. Suffice to notice that the right of a party to invoke the doctrine of restitution is dependent upon several questions of facts and that on his establishing the necessary requirement he can seek restitution. In that view it cannot be said that the revision petition has become infructuous merely because of a subsequent sale in execution pursuant to an erroneous order, which order, if were otherwise, the sale would not have taken place. In view of what is stated above there is no merit in the preliminary contention raised and I overrule the same. 8. In view of what is stated above there is no merit in the preliminary contention raised and I overrule the same. 8. Under S.55(4)(b) of the Transfer of Property Act, 1882, where the ownership of a property has passed to a buyer, before payment of the whole of the purchase price, the seller is entitled to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the nonpayment, for the amount of the purchase money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered. It is the liability as aforesaid that is exempted from the definition of the word 'debt' in clause (g) referred to above occurring in the Kerala Dept Relief Act, 1977. It is difficult to understand how a decree for profits passed on account of a sharer's liability to account for the same to the other sharers can be characterised as unpaid purchase money due from a vendee of an immovable property. The learned counsel for the respondent in this connection relied on the Full Bench decision of this Court in Parvathi Amma v. Makki Amma ( 1961 KLT 937 ). In the aforesaid decision owelty payable by one sharer to another was held by the majority decision (Raghavan J. dissenting) to be unpaid purchase money. Whatever be the position with reference to owelty, I am not prepared to extend the principle stated in the aforesaid decision to share of profits payable as aforesaid. The Full Bench proceeded on the basis that 'owelty represents the value of the excess of landed property allotted on partition to a cosharer over his due share and ensures to the person who was given less properties than are due to him on an equal division' and 'is virtually the price of property taken from one and given to another at partition'. It cannot be said that that principle would be attracted to a decree awarding share of profits making one sharer liable to another sharer. In that view it appears to me that the lower court went wrong in holding that the liability in question falls under clause (g) referred to above. The order under revision cannot, therefore, be upheld. It cannot be said that that principle would be attracted to a decree awarding share of profits making one sharer liable to another sharer. In that view it appears to me that the lower court went wrong in holding that the liability in question falls under clause (g) referred to above. The order under revision cannot, therefore, be upheld. No other reason has been stated by the lower court for holding that the liability in question is not a debt coming within the purview of the Act and, therefore, I should take it that it is a liability coming under the purview of the Act. I hold so. 9. It appears that the decree holder has a case that the revision petitioner is not a debtor coming within the purview of the Act as that word has been defined in This Product is Licenced to Unnikrishnan V., Adv, Ekm Page:6 necessary to direct that court to consider that question afresh with reference to the evidence on the point. I direct so. 10. The result is this revision petition is allowed by holding that the liability in question is debt coming within the purview of the Kerala Debt Relief Act, 1977, and directing the lower court to consider afresh the question whether the revision petitioner is a debtor coming within the purview of the Act and to dispose of EP 32 of 1978 so far as she is concerned accordingly. The order under revision allowing execution to proceed so far as the other respondents to the E.P. are concerned is not by this decision interfered with. There will be no order as to costs.