GOPALAKRISHNAN NAIR Vs. SUBHADRA AMMA

JUDGEMENT

(1.) The agriculturist-judgment - debtor, who filed a petition in the lower court under

(2.) By S.16 of the Kerala Agriculturists Debt Relief (Amendment) Act, 1960 (Act II of 1961) S.23A has been inserted in the principal Act and this section provides for an appeal, inter alia, against any order under S.22, to the court to which appeals ordinarily lie from the decisions of the court passing the order. The amending Act has been made retrospective from the date of commencement of the principal Act. Therefore, under this section the order sought to be revised, is appealable to the Subordinate Judges Court. But since the learned advocate of the petitioner did not indicate that he would take advantage of this provision and since the Civil Revision Petition itself was filed prior to the passing of the amending Act, I propose to dispose of the Civil Revision Petition on merits. This course is in order, for, the revisional powers of the High Court under S.115 are excluded only in cases where appeals are provided to the High Court and not to one of the subordinate courts (vide Raman Vasu v. Raman Namboodiripad Narayanan Namboodiripad, CRP. No. 390 of 1961 and Martha Nicholas v. Yesamma, 1961 KLT 927 ).

(3.) Mr. Balakrishna Eradi, the petitioners learned advocate, has raised two contentions before me: (1) that the earned Munsiff wrongly cast the burden on the petitioner to prove that the debt came within S.2 (c) (viii) and (2) that the term Debt in S.22 had its ordinary and natural meaning and it meant any debt of an indebted agriculturist and was not confined to a debt as would come within S.2 (c) of the Act. The contention of the learned advocate on the first point is that since Clause (viii) of Sub-s.(c) of S.2 speaks of an exclusion, the claim for such exclusion has to be established by the one who, claims it and therefore, the learned Munsiff was wrong in casting the onus of proving it on the judgment - debtor. I am not sure that this contention is right. Debt is defined as any liability in cash or kind due from or incurred by an agriculturist etc. but does not include, inter alia, any debt or debts due to a widow etc. The onus is on the petitioner to prove that the debt in question comes within the definition of that term in S.2 (c), which means that he has not only to establish that it is a liability due from or incurred by an agriculturist, but also to prove that it is not included in any of the clauses under Sub-s.(c). At any rate, in this case even if the burden of proving the exclusion is on the decree holder, even then I do not think that the conclusion of the learned Munsiff is wrong, in view of the evidence available in the case. I have perused the evidence of Pw. 1 and Rw. 2 and I am not satisfied that the appreciation of the evidence by the lower court is wrong.