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Ouseph Thomman Vs. Devasia Ouseph and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1301 of 1961
Judge
Reported inAIR1967Ker48
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantOuseph Thomman
RespondentDevasia Ouseph and anr.
Appellant Advocate Joseph Augustine,; M.C. Mathew and; V.J. Joseph, Adv
Respondent Advocate M.M. Thomas, Adv.
DispositionAppeal dismissed
Cases ReferredIn Mammad v. Abdul Salam
Excerpt:
- .....so on the footing, that the debt under the decree is a debt as defined by the travancore-cochin indebted agriculturists relief act, 1956, act 3 of 1956, and the kerala agriculturists debt relief act- 1958, act 31 of 1958. we shall decide the point raised on the same footing, but shall leave it to the execution court in decide, whether the respondents are agriculturists and the debt is a debt as defined in the two acts.2. section 3 of act 3 of 1956 placed an embargo on the making of an application for the execution of decree, for a period of six months from the commencement of that act. the appellant had a right to execute the decree within a period of three years and six months of the date of the decree, that is, till the 16th january, 1968. under that act, the first instalment of the.....
Judgment:

Velu Pillal, J.

1. This second appeal which has been referred to a division bench raises the question whether petition dated the 29th September, 1959, for the execution of a decree dated the 16th July 1954, is barred by limitation or not. The two Courts below have held that it is barred. They have done so on the footing, that the debt under the decree is a debt as defined by the Travancore-Cochin Indebted Agriculturists Relief Act, 1956, Act 3 of 1956, and the Kerala Agriculturists Debt Relief Act- 1958, Act 31 of 1958. We shall decide the point raised on the same footing, but shall leave it to the execution Court in decide, whether the respondents are agriculturists and the debt is a debt as defined in the two Acts.

2. Section 3 of Act 3 of 1956 placed an embargo on the making of an application for the execution of decree, for a period of six months from the commencement of that Act. The appellant had a right to execute the decree within a period of three years and six months of the date of the decree, that is, till the 16th January, 1968. Under that Act, the first instalment of the debt was payable on or before the 28th February, 1957, and the second on or before the 31st August, 1957. Section 4 (2) of that Act was as follows:

'Where in respect of a decree for debt passed before the commencement of this Act, a debtor falls to make any one of the payments specified in Sub-section (1) and Section 8, the decree-holder shall be entitled to execute thedecree in respect of the instalment which is in arrear.'

On the terms of this Section there is no doubt, that the right of a decree-holder is to execute the decree in respect of the instalment, if any, which is in arrear. This is so even when a judgment-debtor makes no payment whatever under the Act and is in default even in respect of the first instalment. There is nothing in Section 6 and Section 10 of the Act which were relied on, which militates against this view. Decided cases support this view under both the Acts, in which the corresponding provisions are similar. In Nabisa Ummal v. Cherian, 1959 Ker LT 1352, a division bench held that under Section 4 (2) of Act 3 of 1956, the decree-holder could have executed the decree only in respect of the defaulted instalments and not the whole amount of the decree, if the judgment-debtor is otherwise entitled to relief under the Act. Similar observations under Ad 31 of 1958 are to be found in Valayudhan v. Gokulan, 1964 Ker LT 600, also decided by a bench. In Mammad v. Abdul Salam, 1963 Ker LT 283, one of us held, that by the force of Act 31 of 1958, a decree for the realisation of money became transformed into a decree for money payable in instalments and that the right to execute the decree under the Act arose on the dates of the concerned instalment: in other words, time started running from such dates

3. If as slated, the appellant had the right to execute the decree till the 16th January, 1958, upon the default in payment of the first and second instalments on the dates aforesaid, the appellant acquired a fresh right to execute the decree on those dates. When Act 31 of 1958 came into force on the 14th July, 1958, the right to execute the decree had not become barred. Under Act 31 of 1958, the dales of the first and second instalments were respectively the 14th January and the 14th July, 1959. The petition for execution was only in respect of the first two instalments. It follows from the above, that the petition was not barred by limitation, in case Act 3 of 1956 and Act 31 of 1958 are applicable.

4. When the petition was filed for execution of the decree, notice was ordered only on the question of limitation but the respondents did not appear. This appeal preferred by the appellant was contested by the respondents, who also denied that they were agriculturists as defined, The Court overruled this contention although it dismissed the appeal. We consider that the issue as to whether the respondents are agriculturists and whether the debt came within the purview of Act 3 of 1956 and Act 31 of 1958, has not been tried by the execution Court. In the circumstances we direct the execution Court to consider and decide whether the provisions of Act 3 of 1956 and Act 31 of 1958 are applicable to the respondents and to the debt in question.

5. For the foregoing reasons, the orders of the two Courts below are set aside and this appeal is allowed with costs in this Court; thecase will go back to the execution Court for disposal in the light of the observations made above.


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