SAYED Vs. MATHAI DEVASIA

JUDGEMENT

(1.) THE petitioners prayed that the court sale of four items of property in pursuance of the decree in O. S. No. 81 of 1109 of the district Court of Kottayam should be set aside. THE prayer was rejected.

(2.) THE prayer was based on sub-section (1) of S. 22 of the kerala Agriculturists Debt Relief Act, 1958. That sub-section (omitting the provisos) reads as follows: "[1] Where any immovable property in which an agriculturist had an interest has been foreclosed, or sold, either in execution of any decree or under the provisions of the Revenue Recovery Act for the time being in force, for the recovery of a debt due to a creditor or to a banking company, as defined in the Banking Companies Act, 1949, in liquidation [i] on or after 1st November, 195 6 , or [ii] before 1st November, 1956, but the possession of the said property has not actually passed before 20th November 1957, from the judgment debtor to the purchaser, then, notwithstanding anything in the Indian limitation Act, 1908 or in the Code of Civil Procedure, 1908, or in the Revenue recovery Act for the time being in force, and notwithstanding that the sale has been confirmed such judgment debtor, may - [a] in the case of a sale where the purchaser is the decree-holder, deposit one-half of the purchase money together with the costs of execution, where such costs were not included in the purchase money, and apply to the Court within six months of the commencement of this Act to set aside the sale of the property and the Court shall, if satisfied that the applicant is an agriculturist entitled to the benefits of this Act, order the sale to be set aside and the Court shall further order that the balance of the purchase money shall be paid in ten equal half-yearly instalments together with the interest accrued due on such balance outstanding till the date of payment of each instalment at five per cent per annum, the first instalment being payable within a period of six months from the date of the order of the Court; and [b] in other cases, deposit the purchase money as respects sales, or the mortgage amount including interest and costs as respects foreclosures, and apply to the Court within six months of the commencement of this Act to set aside the sale or foreclosure of the property, and the Court shall, if satisfied that the applicant is an agriculturist entitled to the benefits of this Act, order the sale or foreclosure to be set aside. "

(3.) IT is common ground that if the sale has to be set aside, it has to be set aside in its entirety, and that it is not possible to set it aside only in so far as it affects the item of property still in the possession of the petitioners. The question, therefore, is whether, when four items of property were sold in one lot, we can say that the possession of "the said property" has not actually passed if one of the items included in the sale has not been delivered to the purchaser. We think we can. "the said property" must mean the entire property sold, and when the possession of the whole of that property has not passed, but only of a portion thereof, the possession of "the said property" should be considered as not having passed from the judgment-debtor to the purchaser.