DAMODARAN PILLAI Vs. KANTA KOCHUKUNJU

JUDGEMENT

(1.) The only question that arises for decision in this Civil Revision Petition is whether an insolvent can make an application for relief under the Kerala Agriculturists Debt Relief Act. The lower court has held that he can maintain an application and one of the creditors in the insolvency has questioned the correctness of this decision in the Civil Revision Petition.

(2.) The application for adjudicating the debtor as an insolvent was filed on 29th June, 1958. Pending the application the Debt Relief Act came into force on 14th July, 1958, and thereafter on 30th September, 1958 the debtor was adjudicated insolvent. Subsequently the insolvent filed an application on 14th November, 1958 claiming relief under the Debt Relief Act. The Official Receiver and all the creditors in the insolvency were respondents in the petition. As we have already indicated, the lower court held that the petition was maintainable and one of the creditors has filed the present revision. It may also be mentioned that the Official Receiver is also a respondent before us.

(3.) Before we consider the relevant provisions of the Kerala Agriculturists Debt Relief Act we would dispose of one argument based on a provision of the Madras Agriculturists Relief Act of 1938. In that Act S.21 (2) provides that in a case where a dividend has not been declared prior to the commencement of the Act, the court shall on application made by the insolvent debtor, the Official Assignee or Official Receiver in whom the property of such debtor is vested, or any other person interested; apply the provisions of the Act to the debts payable by the insolvent debtor, if he would have been an agriculturist within the meaning of the Act but for his adjudication in insolvency. It is contended on the basis of this provision that the agriculturist-debtor, who is adjudicated insolvent, would not have been competent to claim the benefits of the Agriculturists Relief Act but for this provision. It is further contended that the insolvent would have been an agriculturist only if the adjudication in insolvency were not there; for, the provision reads that the court shall apply the provisions of the Act to the debts payable by the insolvent, if he would have been an agriculturist but for his adjudication in insolvency. Putting it differently the argument amounts to this: that, but for a special provision allowing the insolvent or the Official Receiver to claim the benefits of the Madras Agriculturists Relief Act, the insolvent or the Official Receiver would not have been competent to apply for relief under the said Act and since there is no provision like that in the Kerala Agriculturists Debt Relief Act the insolvent debtor and the Official Receiver are precluded from maintaining any application for relief under the Act. In answer to this contention the learned advocate of the respondents urges that the definition of agriculturist in the Madras Act is substantially different from the one in the Kerala Act. In the Madras Act, the learned counsel points out, agriculturist means a person who has a saleable interest in any agricultural or horticultural land, whereas in the Kerala Act agriculturist means a person who has an interest, other than as a simple mortgagee, in any agricultural or horticultural land. According to him this definition of agriculturist in the Madras Act as a person who has a saleable interest in any agricultural or horticultural land necessitated the enactment of a provision like