KANARAN NAIR Vs. APPU NAIR

JUDGEMENT

(1.) The revision petitioner seeks to vacate the order by the lower court, giving to the representative of a judgment debtor the benefit of S.22 clause (3) of the Kerala Agriculturists Debt Relief Act, 1958, and setting aside an auction sale. The litigation between the parties to the petition has a long history, which begins with the parties to a suit for partition being called upon to pay for the stamp papers for drafting the final decree. Some of them did not comply, and the entire amount was paid by defendants 31 to 33. To recover such payment from the other cosharers, a charge had been given in the final decree to the paying defendants on the shares of the other cosharers in the properties partitioned Later the aforesaid charge was enforced to realise what was due from defendants 34 to 42, the properties charged were put to sale, actually sold, and purchased by the revision petitioner.

(2.) Another, who had taken assignment of the rights of defendants 34 to 42, filed an application claiming relief under O. XXI, R.90, CPC averring fraud, and the application came to be decided after the Kerala Agriculturists Debt Relief Act, 1958, had come into operation. The lower court has allowed it in exercise of powers under S.22 (3) of the Act rejecting the objection of that application being beyond the period of limitation.

(3.) The petitioners learned advocate has urged two grounds against the order. He has argued that the benefit of the section is personal, and the representative of the judgment debtor cannot invoke the sub-section. The next argument is that the amount, for which the properties had been sold, is owelty, and, therefore, not judgment debt, with the result of the exercise of power in the particular case being without jurisdiction. The learned Advocate has fairly drawn my attention to the Full Bench decision in Parvathi Amma v. Makki Amma, A.S. No. 618/58 decided on 30th August, 1961, where the learned Judges have held that owelty would be the price of land alone, which had been taken from cosharers and allotted to another on a partition, with the result of its being a vendors charge for unpaid price. They have, therefore, held that such a charge is within Exception (vii) in the definition of Debt under the Act. It is obvious that what be charged on the partitioned property for payment of stamp paper, would not be owelty; and, therefore, the second argument by the petitioners Advocate fails.