Kerala High Court
Harihara Iyer vs Augusthi Devasia on 20 August, 1968
Equivalent citations: AIR1969KER237, AIR 1969 KERALA 237
Author: V. Balakrishna Eradi
Bench: V. Balakrishna Eradi
JUDGMENT
1. The 6th defendant in O. S. 73 of 1121 on the file of the Munsiffs Court, Thodupuzha is the appellant before us.
2. The matter arises in execution. When the decree-holder sought to execute the decree an objection petition was preferred by the 6th defendant raising the contention that he is an agriculturist entitled to the benefits of the Kerala Agriculturists Debt Relief Act, 1958, Act 31 of 1958, (hereinafter referred to as the Act). The decree-holder put forward the plea that the decree amount represents the balance of unpaid sale consideration due by the vendee in respect of a transaction of sale of immovable property and is therefore a liability exempted from the purview of the Act by virtue of the specific exemption contained in Section 2 (c) (vii) of the Act. The executing court rejected this contention of the decree-holder and held that the 6th defendant is entitled to the benefits of the Act. It accordingly directed the decree-holder to file an amended execution petition stating the correct amount realisable under the provisions of the Act.
3. The decree-holder thereupon preferred an appeal to the District Court, Ernakulam. The lower appellate court set aside the order of the executing court and held that the liability under the decree falls within the scope of the exemption contained in Section 2 (c) (vii) of the Act. Hence this second appeal by the 6th defendant.
4. This second appeal was heard by us along with C. R. P. 118 of 1967 since a common question was involved in both the cases relating to the correctness of the decision in Kochukunju Kuni'ukunju v. Sankaran Ambujakshan, 1962 Ker LT 254. By our judgment delivered on 14-8-1968 in CRP 118 of 1967: (AIR 1969 Ker 234 (FB)) we have upheld the correctness of the aforesaid ruling. In the light thereof it has to be held that inasmuch as the transaction of sale relied on by the decree-holder is one that took place in the erstwhile Travancore area prior to 1-4-1951, the liability for unpaid purchase-money arising therefrom will not fall within the scope of the exemption contained in Section 2 (c) (vii) of the Act. The lower appellate court was therefore in error in holding that the liability under the decree will not constitute a 'debt' as defined in the Act.
5. The second appeal is accordingly allowed and the decision of the lower appellate court is set aside. The execution proceeding will stand remanded to the first court for being proceeded with after determining the amount payable by judgment-debtor in accordance with the provisions of the Act. We direct the parties to bear their respective costs in this court as well as in the lower appellate court.