PATHROSE Vs. BHANU

JUDGEMENT

(1.) The only question that is raised in this Civil Revision Petition is regarding the nature of a decree debt, namely, whether it is covered by S.2(c)(vii) of the Kerala Agriculturists Debt Relief Act or not. The petitioner before me is the assignee - decree holder and the respondent the 1st defendant judgment - debtor. On 16-2-119 the assignors of the decree sold certain immovable properties to the judgment - debtor for Rs. 7000/-, out of which a sum of Rs. 3000/- was reserved with the vendee to pay off a mortgage subsisting on the property and to pay off other personal debts of the vendors. There was a further stipulation in the document that, if the amount reserved was found insufficient to discharge the aforesaid liabilities, the vendors would pay the balance and if there remained any balance after the payment of the liabilities mentioned in the document, the vendee should pay back the balance. Subsequently the vendors filed a suit to recover an amount of Rs. 1000/- on the basis that the amount was the balance of unpaid purchase money and the decree, which is the subject matter of the present proceedings, was obtained creating a charge on the property. Thereafter the decree was assigned to the petitioner. When the decree was sought to be executed in the lower court, the vendee-judgment - debtor claimed relief under the Agriculturists Debt Relief Act, whereupon the petitioner claimed that the debt was excluded by S.2 [c] [vii], the debt being a liability for which a charge was provided under sub-section [b] of Clause.4 of S.55 of the Transfer of Property Act, 1832. The contention was rejected by the lower court and hence the present revision.

(2.) The lower court relied on a Full Bench decision of the Travancore-Cochin High Court in coming to this conclusion and the decision is Rama Panicker v. Rama Panicker and others, 1954 KLT 311 , wherein there is an observation to the effect that no question of unpaid purchase money, and much less any charge for it, would arise in respect of an amount left with the vendee to discharge a debt charged on the property vended. The learned advocate of the respondent also laid stress on this observation in support of his case He further argued that the Transfer of Property Act was made applicable to the State of Travancore-Cochin only in 1951 and the sale involved in the present case being prior to 1951, S.2 [c] [vii] could not apply to this case.

(3.) I shall dispose of the second objection first. What is contemplated by S.2 [c] [vii] is not the actual subsistence of a charge under S.55 [4] [b] of the Transfer of Property Act; but what is excepted under this clause is a liability for which a charge is provided under sub clause [b] of Clause.4 of S.55 of the Transfer of Property Act. This only means that sub clause [vii] of S.2 [c] specifies a category of liability to which the Act does not apply and nothing turns on the actual subsistence of the charge. For this view there is support in a recent case of this Court, Amarnatha Menon v. Malathy Amma, 1960 KLT 10 . Therefore the only question is whether the decree-debt now before me is a liability of the category for which a charge is provided under S.55 [4] [b] of the Transfer of Property Act. If I come to the conclusion that the decree is such a liability, then the fact whether at the date of the sale the Transfer of Property Act applied to the sale or not is of no consequence.