VARIATHU ALIAS POTHEN Vs. AYYAPPAN

JUDGEMENT

(1.) The appellant is a judgment - debtor who is admittedly an agriculturist, both within the meaning of the Travancore-Cochin Indebted Agriculturists Relief Act, III of 1956 and of the Kerala Agriculturists Debt Relief Act, XXXI of 1958, S.26 of which repealed the former Act. The liability under the decree which is now being enforced against him is a debt within the meaning of the former Act, but comes within the exclusion in clause (vii) of S.2(c) of the latter Act and is therefore not a debt within the meaning of that Act. Under S.4 of Act III of 1956 the petitioner was entitled to discharge the decree (which was of the year 1955) in instalments, and, in fact, there was an order dated 22-9-1956 of the executing court to that effect. In March 1959, the decree holder brought the present execution application for the recovery of the entire amount due under the decree in lump relying on the circumstance that the debt was not a debt within the meaning of Act XXXI of 1958. The executing court held, obviously in view of S.4(c) and (e) of the Interpretation and General Clauses Act, 1125 (S.6(c) and (e) of the General Clauses Act, 1897), but without any express reference to that statute, that the repeal of Act III of 1956 by Act XXXI of 1958 did not take away the benefits already conferred before the repeal. Accordingly it directed the decree holder to execute his decree only for the defaulted instalments in accordance with the provisions of Act III of 1956. Against this order, the decree holder appealed and the lower appellate court has held that, the inclusion of any debt or balance of debt due under Act III of 1956 in the definition of 'debt' in S.2(c) of Act XXXI of 1958 betrayed a 'different intention' within the meaning of S.4 of the Interpretation and General Clauses Act and that therefore the matter was governed exclusively by the provisions of Act XXXI of 1958. According to it, by defining 'debt' in such wise for the purposes of Act XXXI of 1958, the Legislature made it clear that it did not intend to keep alive any benefit or privilege conferred by Act III of 1956 which it was repealing. In this view it allowed the decree holder's appeal and held that his application for recovery of the entire balance due under the decree in lump was maintainable.

(2.) Now, it can scarcely be disputed that S.4 of Act III of 1956 conferred on the judgment - debtor the right to pay the decree against him in instalments and that, in the absence of a different intention in the repealing enactment, Act XXXI of 1958, that right, as also any remedy in respect thereof, will continue unaffected by reason of S.4(c) and (e) of the Interpretation and General Clauses Act. The short question then is, does the inclusion of a debt or balance of debt due under Act III of 1956 in the definition of 'debt' in Act XXXI of 1958 manifest such an intention I think not. In the first place I should think that if the Legislature had any such intention the proper place for expressing that intention would be in the section effecting the repeal. But S.26 of Act XXXI of 1958 which repeals Act III of 1956 merely states that the latter Act is repealed and says nothing whatsoever to exclude the operation of S.4 of the Interpretation and General Clauses Act or to indicate that the rights and benefits already conferred by the repealed Act were not to continue. I do not think that if the Legislature had any such "different intention" it would have left that to be inferred from provisions of the repealing Act which are not concerned with the repeal. In any case, I think the Legislature would have employed express words manifesting the "different intention". I see some little force in the argument advanced on behalf of the decree holder, namely, that when enacting Act XXXI of 1958 the Legislature thought that it was not proper that persons owing debts falling within the exclusion in clause (vii) of S.2(c) of that Act should have the benefits thereof and that its inclusion of a debt or balance of debt due under Act III of 1956 in the definition of "debt" was an attempt to correct the mistake it had made in Act III of 1956 by conferring benefits even on such debtors. According to this argument, the purpose of this inclusion was to lay down that debts falling within the ambit of Act III of 1956 would cease to be governed by that Act and would be governed only by Act XXXI of 1958. But, as I have already remarked, if that were the intention I do not think that the Legislature would have set about expressing it in such an obscure manner when it could easily have employed express language for the purpose. I think rather that the inclusion was made by way of abundant caution so as to make it clear that even those debts which fell within the purview of Act III of 1956 could get the larger benefits of Act XXXI of 1958 so long as they were debts within the definition of the latter Act. True, this was scarcely necessary in view of the very wide definition of "debt" in Act XXXI of 1958 as meaning any liability whether payable under a contract or under a decree or order of any court or otherwise, but perhaps the Legislature felt that it was necessary in order to forestall any contention that a person could not claim the concurrent benefits of both the Acts. Had the intention been to take away the rights conferred by Act III of 1956 with its repeal, some provision would have been made for reopening orders and decrees of courts made under the provisions of that Act, and the very fact that no such provision is made shows that there was no intention of depriving the persons who were entitled to the benefits of Act III of 1956 of those benefits.

(3.) Exception is taken on behalf of the judgment - debtor to my earlier statement that the decree debt in question is one to which the provisions of Act XXXI of 1958 do not apply. It is said that the inclusion of debts due under Act III of 1956 in the definition of "debt" in Act XXXI of 1958 means that such debts are debts within the meaning of Act XXXI of 1958, even if they come within any of the exclusions in the definition. But the exclusions in clauses (i) to (xi) of S.2(c) are in the nature of provisos to the definition in the body of the section, and the inclusion of a debt due under Act III of 1956 is in the body of the section. Therefore the provisos apply also to debts under Act III of 1956, and, it is not as if the inclusion of such debts is in the nature of a proviso to the exclusions in clauses (i) to (xi).