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Pulikkottil Tharappan Vs. Perumbulli Manakkal Purushothaman Nambudiri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 262 of 1962
Judge
Reported inAIR1965Ker284
ActsDebt Law; Kerala Agriculturists Debt Relief Act, 1958 - Sections 22, 22(1) and 23A; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantPulikkottil Tharappan
RespondentPerumbulli Manakkal Purushothaman Nambudiri
Appellant Advocate K.C. Sankaran and; K. Raghavan Nair, Advs.
Respondent Advocate D. Narayanan Poti,; N. Kesavan Namboodiri,; N. Govindan
DispositionRevision dismissed
Cases ReferredMathunny v. Jathavedan Namboodiripad
Excerpt:
- - we are not satisfied that this is one of those cases where a judicial interpretation giving a different meaning from that attributable normally is possible. however, the provisions in sections 22 (1) (a) and 22 (1) (b) and the fourth proviso to section 22 (1) (b) clearly indicate that the time for making an application is to run from the date of commencement of the act. this gives, according to us, a clear indication that the act that is complained of (the sale) must have taken place before the commencement of the act. otherwise it would mean that the legislature had intended that time should begin to run even before the act complained of had taken place......to section 22 (1). by this amendment, even when immovable property had been sold for arrears of rent of michavaram, an application under that section became possible. before the amendment an application under that section would lie only when an immovable property was sold for the recovery of a 'debt' as denned in the act and this term did not include arrears of rent or michavaram. in this case the decree was for arrears of rent. the execution sale however took place only on 15-3-1961 and the application was made on the 6th of april that year.9. counsel on behalf of the revision petitioner wants us to read the proviso,'provided also that in the case of a sale in execution of a decree for tha realisation of arrears of rent or michavaram the application under this sub-section for setting.....
Judgment:

Govindan Nair, J.

1. The questions arising for determination in this Civil Revision Petition are three:

(a) Whether an order passed by the appellate authority functioning under the Kerala Agriculturists Debt Relief Act, 1958, is revisable by this Court?

(b) Whether the period of one year provided by the fourth proviso to Clause (b) of Sub-section (1) of Section 22 should commence from the date of publication of the amending Act, (Act II of 1961) 30-1-1961? and

(c) Whether an application under Section 22 of the same Act, in relation to a sale that took place after the commencement of the Act, would lie?

2. The Revision petitioner moved the Munsiff's Court, Wadakkancherry on 6-4-1961 to set aside an. execution sale which was held on 15-3-1961 for arrears of rent due from the Revision petitioner. This application was rejected and availing himself of the provision in Section 23A of the Kerala Agriculturists Debt Relief Act, 1958 (hereinafter referred to as the Act) an appeal was filed before the Additional Subordinate Judge, Trichur. it is from the order dismissing that appeal that this revision is moved.

3. A preliminary objection was taken by the counter petitioner that in view of the provision in, Section 2SA of the Act that the order passed in appeal shall be final this Court is precluded from dealing with the revision petition. We shall read Section 23A:

'23A. Appeals--An appeal shall lie against any order passed under Sub-section (1) of Section 8, Sub-section (1) or Sub-section (3) of Section 9 and Sections 12,18, 22 and 23 to the Court to. which appeals ordinarily lie from the decisions of the Court passing the order and the order passed in appeal shall be final:

Provided that where the order is passed by a Revenue Court the appeal shall lie to the District Court within whose jurisdiction the Revenue Court is situate and such appeal shall be filed within sixty days of the date of the order appealed against.

4. One view that can be taken is that the finality given to the appellate order by the section means only that there shall be no further appeal. However, it is contended by the respondent that the finality given by the section precludes even a revision petition. Section 23A of the Act must be reconciled with Section 115 of the Code of Civil Procedure. It is not suggested that the appellate authority under the Act which is a 'civil court' acted in any capacity other than that of a 'civil court'. The order that is impugned before us is therefore an order passed by a Civil Court which is normally amenable to the revisional jurisdiction of this Court.

5. The identical question has been considered by the Madras High Court in a Full Bench decision reported in Parthasarathy Naidu v. Koteswara Rao, AIR 1924 Mad 561 (FB) and Chief Justice Schwabe stated that it is an accepted legislative practice to use; words similar to those employed in Section 23A when the legislative intent is to preclude further appeals. This however, the learned Judge said, would not debar the revisional jurisdiction of the High Court. The relevant passage is at p. 562 and reads thus:

'It is the ordinary mode of expression used for the purpose in much of the legislation in England on. which this legislation is founded; and, where the whole object of revision is to prevent a Court, from which there is no appeal, acting contrary to its jurisdiction, a finding that it is the law that, because the words used are 'the decision shall be final' , a Court ordinarily subject to the revisional powers of this Court, should be permitted to act wholly without jurisdiction without the aggrieved party being entitled to any remedy, would in my judgment be untenable, and that would be the effect of deciding this second point in favour of the contention put forward.'

6. To the same effect is the decision of the Full Bench of the Allahabad High Court reported in Shah Chaturbhuj v. Shah Mauji Ram, AIR 1938 All, 456 (FB).

7. Apart from the above decisions there is the weighty observation of the Supreme Court in the decision in Nemi Chand v. Edward Mills Co. Ltd., AIR 1953 SC 28 at page 32 :--

'Perhaps it may be possible to reconcile the provisions of the two statutes by holding that the finality declared by Section 12 of the Court-fees Act means that the parties cannot impugn such a decision by preferring an appeal but that it does not confer on such decisions a complete immunity from examination in a higher Court. In other words, Section 12 when it says that such a decision shall be final between the parties only makes the decision of the Court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that. If a decision under Section 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers.'

We therefore hold that this revision petition is maintainable.

8. Passing on to the second point formulated above, the question is whether the fourth proviso to Clause (b) of Sub-section (1) of Section 22 should be read as contended by counsel on behalf of the revision petitioner. This proviso was introduced by the Kerala Agriculturists Debt Relief (Amendment) Act, 1960, (Act 2 of 1961). This Act was published in the Gazette on 30-1-1961. Section 1 of Act 2 of 1961 provides that the Act shall be deemed to have come into force on the 14th day of July 1958. This is the date on which the amended Act had come into force. Several amendments have been introduced by Act 2 of 1961 and the most material one for the purpose of this case is the amendment to Section 22 (1). By this amendment, even when immovable property had been sold for arrears of rent of michavaram, an application under that section became possible. Before the amendment an application under that section would lie only when an immovable property was sold for the recovery of a 'debt' as denned in the Act and this term did not include arrears of rent or michavaram. In this case the decree was for arrears of rent. The execution sale however took place only on 15-3-1961 and the application was made on the 6th of April that year.

9. Counsel on behalf of the revision petitioner wants us to read the proviso,

'Provided also that in the case of a sale in execution of a decree for tha realisation of arrears of rent or michavaram the application under this sub-section for setting aside the sale may be made at any time within one year from the commencement of this Act.' in the following manner :

'Provided also that in the case of a sale in execution of a decree for the realisation of arrears of rent or michavaram the application under this sub-section for setting aside the sale may be made at any time within one year from the date of publication of Act 2 of 1961.'

10. This contention is raised obviously for the reason that if the sale had taken place either before the commencement of the Act or some time in 1958, it was impossible to comply with the provision contained in the Act, namely, to make an application within one year from the commencement of the Act, which would have expired on 14-7-1959. This provision, it was therefore urged, would lead to absurdities and the negation of the right apparently conferred by statute to set aside sales held in execution of decrees for arrears of rent and michavaram. The suggestion made by counsel on behalf of the respondent to get over this apparent anomaly is that there must have been many applications moved for setting aside sales held in execution of decree for arrears of rent and michavaram and that there certainly were applications for setting aside sale in execution of decree for michavaram, michavaram having been considered to be a 'debt' till the position was clarified by this Court in Mathunny v. Jathavedan Namboodiripad, 1960 Ker L T 982 and that the Legislature intended only to save those applications that had already been filed. It was also brought to our notice that the Bill that gave rise to the amending Act was moved early in 1959 and that in anticipation of the provisions in the Bill becoming law, several applications must have been moved for setting aside sales held in execution of decree for rent and michavaram and the Legislature intended to save only such applications that were pending. Whatever might have been the motive in enacting the proviso it is not for us to re-write the section in such a way as to amount to legislation and give it a meaning different from its import as it is enacted. We are not satisfied that this is one of those cases where a judicial interpretation giving a different meaning from that attributable normally is possible. We therefore come to the conclusion that it is not possible to read the proviso as suggested by counsel on behalf of the petitioner.

11. The only other question remaining to be considered in this case is whether an application under Section 22 of the Act can be moved for setting aside a sale which took place after the commencement of the Act. When we say 'after the commencement of the Act', we naturally mean after 14-7-1958 in view of the retroactive operation given by the Legislature to the amending Act. Act II of 1961. The wording in Section 22 (1):

'Where any immovable property in which an agriculturist had an interest has been foreclosed, or sold,..........'

seems to us not to be conclusive. It was suggested that the use of the words 'has been' means that the sale should have taken place before the commencement of the Act, This is not necessarily so. It can be read to mean that the sale should have taken place at the time the section is sought to be applied. However, the provisions in Sections 22 (1) (a) and 22 (1) (b) and the fourth proviso to Section 22 (1) (b) clearly indicate that the time for making an application is to run from the date of commencement of the Act. This gives, according to us, a clear indication that the act that is complained of (the sale) must have taken place before the commencement of the Act. Otherwise it would mean that the Legislature had intended that time should begin to run even before the act complained of had taken place. We are unable to place such an interpretation. We therefore hold that an application under Section 22 of the Act will be maintainable only in regard to sales that had taken place before the commencement of the Act, i.e., before 14-7-1958.

12. In the light of the above this civil revision petition cannot be entertained. We dismiss it. The parties will bear their costs throughout.


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