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itten Narayanan Vs. Narayanan Nair Parameswaran Nair - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 15 of 1956 (K)
Judge
Reported inAIR1957Ker18
ActsDebt Law; Tranvnacore Cochin Indebted Agricuturists' Relief Act, 1956 - Sections 4, 5, 6 and 7; Code of Civil Procedure (CPC) , 1908 - Sections 115
Appellantitten Narayanan
RespondentNarayanan Nair Parameswaran Nair
Appellant Advocate M.M. Mathew, Adv.
Respondent Advocate T.S. Krishnamurthy Iyer, Adv.
DispositionAppeal dismissed
Excerpt:
- - 3. no doubt it is open to us to treat the appeal as a civil revision petition if there are proper grounds for interfering with the lower court's order in revision, but we are not satisfied that there is any ground for interfering in revision with the order appealed against the application before the lower court seems to us to have been misconceived......act. all that is required when a debtor claims the benefit of the said act is that he should make adeposit as provided in sections 4 and 5 and apply for recording part satisfaction of the debt under section 6 on the ground that he is entitled to the benefit of the act.if the amount deposited by him is insufficient or if there is any dispute either as to the principal or as to the interest payable by the debtor, the court has to fix the correct amount after hearing both sides and to call upon debtor to make the deficiency, if any, within a time to be fixed by it. a dispute as regards the liability to pay interest cannot form an impediment in the way of making an application under section 6, for it is open to the debtor to make a deposit on the basis of the liability admitted by him.....
Judgment:

Kumara Pillai, J.

1. This is an appeal from the order dismissing an application for permission to discharge a debt, for the realisation of which a suit has been filed, by payments in instalments under the Travancore-Cochin Indebted Agriculturists' Relief Act, 1056 (President's Act III of 1956). The appellant had executed a usufructuary mortgage for Rs. 4,000 in favour of the respondent on 21-10-1953, and the latter filed a suit on 4-6-1956 for recovery of this mortgage amount and interest thereon from 20-10-1953 till date of suit and future interest alleging that the mortgagor had not given him possession of the mortgage property in spite of the execution of the mortgage deed.

The appellant contested the suit, contending inter alia that he had given possession of the mortgage property to the respondent and was not therefore liable to pay interest on the mortgage amount. While the suit was pending trial, the Travancore-Cochin Indebted Agriculturists' Relief Act of 1956 was passed by the President' on the 6th September 1956, and after the enactment of that Act and before the suit could be decreed the appellant filed a petition in the lower Court praying that he might be permitted to discharge the debt in instalments under the said Act.

This application the lower Court dismissed on the ground that on account of the dispute regarding interest no decree could be passed in the suit and that it was not therefore possible to fix the amount payable by the appellant for each instalment. On behalf of the respondent it is contended in this Court that as the order impugned by the appellant is not one passed under Section 6 of the T. C. Indebted Agriculturists' Relief Act the appeal itself is not maintainable and that on the merits also the lower Court's order is right and proper.

2. The only provision in the Act relating to appeals is contained in Section 7 of that Act. Section 7 reads:

'An appeal shall lie from an order passed by a Court under Section 6, as if such order relates to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code of Civil Procedure, 1908 (5 of 1908).'

In view of this section the respondent's contention that no order passed in respect of an application under the said Act is maintainable unless it falls within Section 6 of that Act has to be accepted, Section 6 of the Act reads as follows:

'(1) An agriculturist may deposit any of the Instalments as provided in Sections 4 and 5 into the Court having jurisdiction to entertain a suit for recovery of the debt or into the Court which passed the decree, as the case may be, and apply to the Court to record part satisfaction of the debt.

(2) Where any such application is made, the Court shall pass an order recording part-satisfaction of the debt if the amount deposited is the correct amount.

(3) The Court shall dismiss the application:

(a) if the applicant is not an agriculturist; or

(b) if the liability is not a debt; or

(c) if the amount deposited is insufficient and the applicant on being required by the Court to deposit the deficit amount within a time fixed by the Court, fails to do so.

(4) Any agriculturist entitled to make such deposit may, before the date on which any Instalment is due, apply to the court having jurisdiction under Sub-section (1) for an extension of time for making the deposit of the whole or any portion of such instalment and the court may, after notice to the creditor, extend the time for payment of such instalment or Part thereof for such period as it thinks fit.

(5) The procedure laid down in the Code of Civil Procedure, 1903 (5 of 1908) for the trial of suits shall, as far as may be, apply to applications made under this section.'

This section contemplates only application for part-satisfaction of a debt accompanied by actual deposits of the instalments provided for in Sections 4 and 5 and applications for extensions of time to make the deposit before the due date. Therefore appeals under the T. C. Indebted Agriculturists' Relief Act arc entertainable only in respect of orders passed on the two kinds of applications mentioned above. So far as applications for extension of time are concerned, the Court has the discretion to grant the extension applied for or refuse the same.

On applications for recording part-satisfaction of a debt the Court has the discretion to pass three kinds of orders, namely, (i) it can order part satisfaction to be recorded under Clause (2) of Section 6 if the amount deposited is correct; (ii) it can dismiss the application under Sub-clauses (a) and (b) of Clause (3) of Section 6 on the ground that the applicant is not an agriculturist or the liability is not a debt; and (ii) if the amount is insufficient it can require the applicant to deposit the deficit amount within a time fixed by it, and in case of such deposit it has to allow the application and in default it has to dismiss the application. No orders under the T. O. Indebted Agriculturists' Relief Act except those specified above are appealable in view of Sections 6 and 7 of the said Act. As the order now appealed against does not belong to any of these categories and is merely one refusing permission to allow an application to discharge a debt under the Act and it has been made without any deposit at all, we uphold the respondent's objection that it is not appealable.

3. No doubt it is open to us to treat the appeal as a civil revision petition if there are proper grounds for interfering with the lower court's order in revision, But we are not satisfied that there is any ground for interfering in revision with the order appealed against The application before the lower Court seems to us to have been misconceived. There is no necessity for any permission from the Court to make a deposit under the T. C. Indebted Agriculturists' Relief Act. All that is required when a debtor claims the benefit of the said Act is that he should make adeposit as provided in Sections 4 and 5 and apply for recording part satisfaction of the debt under Section 6 on the ground that he is entitled to the benefit of the Act.

If the amount deposited by him is insufficient or if there is any dispute either as to the principal or as to the interest payable by the debtor, the Court has to fix the correct amount after hearing both sides and to call upon debtor to make the deficiency, if any, within a time to be fixed by it. A dispute as regards the liability to Pay interest cannot form an impediment in the way of making an application under Section 6, for it is open to the debtor to make a deposit on the basis of the liability admitted by him and to leave it to the Court to fix the correct amount after hearing both sides. As this was not the procedure which the appellant adopted in the lower Court and he had merely filed a petition for permission to pay the debt in instalments which was unnecessary his application was not maintainable.

We therefore dismiss this appeal as not maintainable, but in dismissing it we make it clear, that the dismissal of this appeal will be no bar to the appellant making a proper application to the lower Court under Section 6 of the Act. If and when he makes that application the respondent will have the right to raise all legitimate objections to such an application. The appellant will pay the costs of the respondent in this Court.


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