STATE OF KERALA Vs. RADHAMANY

JUDGEMENT

(1.) Leave granted.

(2.) We have heard learned counsel on both sides.

(3.) This appeal by special leave arises from the judgment and order of the High court of Kerala dated 14/2/1989 made in Second Appeal No. 77 of 1983. The admitted facts are that one Vasudevan was an Abkari contractor for the year 1968-69. He fell into arrears in payment of Abkari dues as on 1/4/1969. For the recovery of a sum of Rs. 35,497. 00, proceedings were initiated under the Kerala Revenue Recovery Act, 1968 (15 of 1968 (for short, "the Act") on 31/5/1969. Ex. P-1, a demand notice was issued on the defaulter on 17/6/1969. Thereafter, it would appear that the defaulter executed a registered sale deed dated 30/6/1969 for 3 acres 97'/2 cents of the agricultural land in favour of his wife. On 22/2/1969, the Tehsildar served a notice of attachment of the schedule property for recovery of the dues. Challenging the notice of attachment, the respondent filed a suit, OS No. 94 of 1977, which was decreed. On appeal, it was reversed. In second appeal filed by the respondent, by the impugned order dated 14/2/1989 the learned Single Judge has held that only if a demand notice under Section 7 had been served on the defaulter and the transfer was followed thereafter, the person becomes a defaulter and the arrears could be recovered. Thus service of demand notice is a condition precedent for recovery of arrears. In the absence of such a notice, the presumption under Section 44 is inapplicable. Therefore, the sale made in favour of the respondent is valid in law. The question, therefore, is whether the view taken by the High court is correct in law