AMMU AMMA Vs. APPU MENON

JUDGEMENT

(1.) THE interesting question that is raised in this second appeal is whether this Court should go into the merits of a question which was taken as conceded by counsel in the court below on the ground that such concession was on a question of law and therefore will not be binding on the party. In a suit for redemption the decree holder obtained a decree for arrears of purappad and costs. He executed the decree for redemption and obtained delivery of the property. THE money part of the decree remains to be realised. For recovery of this he filed an execution petition, whereupon, a plea that such execution was barred by limitation was set up by the 1st defendant. THE execution would be so barred if the debt which is sought to be recovered is not one falling within the scope of the provisions of the Kerala Agriculturists debt Relief Act, 1958 (hereinafter referred to as the Act ). If the debt comes within the scope of that Act the decree could not have been put into execution during the period when the judgment debtor could have availed of the benefits of payment in instalments under that Act. It is agreed that if the debt comes within the scope of the Act, then there would be no limitation. If, on the other hand, that Act would not apply, then execution would be barred by limitation. THE decree holder, in the execution petition, did not mention his case that Act 31 of 1958 would apply to the debt in question and therefore limitation is saved. Provisions of Act 1 of 1957 and Act 4 of 1961 were referred to in the execution petition as saving the petition from limitation. It is now agreed that it is a mistake and what ought to have been urged for the purpose saving limitation was Act 31 of 1958. If so urged, necessarily it would have had to be considered and from the judgment of the court below it would appear that the appellant was allowed to urge it. THE execution court had held that the execution was barred. THE appellate court, noticing the plea that, if the debt be one coming within the scope of Act 31 of 1958. f there was no limitation, considered the applicability of the Act, but it was not called upon to go the merits of that question because, it would appear from the judgment that counsel on both sides agreed in submitting that the decree debt in the instant case was one to which Act 31 of 1958 applied. In view of this admission by the counsel the court found that there was no limitation. What is challenged in this appeal is that the concession made by the counsel was on a question of law and therefore irrespective of any such concession the party is entitled to challenge the finding and, if allowed to do so, it must be found here on the merits that execution is barred since the debt does not come within the scope of the - Kerala Agriculturists Debt Relief Act, 1958.

(2.) A Full Bench decision of this Court had considered the question of authority of the counsel to enter into compromise and confess judgment on behalf of his client. That was in Souri Nayakam versus A. N. Menon (1968 KLT 1) (1968 KLJ 62), which by a majority held that counsel had authority to make the endorsement to compromise an action or confess judgment. That was a case where a suit for realisation of arrears of rent was resisted by the defendant denying the oral lease set up in the plaint. The defendant in that suit also contended that the rate of rent alleged was not true and that arrears of rent up to a particular period had been discharged. It appears that, later, the counsel for the defendant endorsed on the back of the plaint that the suit may be decreed as prayed for, and on the basis of that endorsement the court passed a decree. The defendant thereafter filed an application for setting aside the decree contending that the authority of counsel, just as authority of an agent, did not extend to acts beyond the terms embodied in the document conferring the authority. The plea that such authority had not been conferred did not find favour with the majority. That was because the Court was of the view that in the case of a counsel the Court was dealing with a profession where well known rules had crystallised through usage. Such usage was found to be on a par with usage in trade where such usage becomes an additional term of the contract, so long as the term is not excluded by general law or by contract to the contrary. What I have to consider in this case is whether the Full Bench may be taken to have said that a concession by counsel whether on a question of law or on a question of fact is binding upon the party.

(3.) NOW it becomes necessary for me to decide the question on the merits and the question is whether Act 31 of 1958 would apply to the instant decree debt. That is a decree for recovery of purappad provided in a mortgage deed. It is a debt within the definition of the term in S. 2 (c) of Act 31 of 1958, forgetting for a moment the exclusion clause in the definition. The question is whether it is excluded by any of the exclusions in S. 2 (c ). Learned counsel for the first defendant would rely on sub-clause (ix) in S. 2 (c) which excludes any rent or michavaram payable for use and occupation of land or building from the definition of debt. The question therefore is whether purappad payable by a mortgagee is rent or michavaram, within the meaning of s. 2 (c) (ix) of Act 31 of 1958.