SUBBAYYA Vs. JOSHVA

JUDGEMENT

(1.) The decree holder is the appellant. Under a compromise decree the defendant agreed to pay in instalments and failing the payment of instalments, it was agreed that the amount could be realised by the sale of the attached property (the property was already attached before judgment). The defendant defaulted, whereupon the property which was subjected to the attachment was brought to sale. The defendant then raised the objection that the property is not liable to be sold as he did not possess a saleable interest in it. The right he has in the property is a kuthakappattom right which under the Kuthakapattom Rules is not alienable by him. The objection was ruled out by the learned Munsiff as untenable; but in appeal the learned Subordinate Judge quashing that order has held that the kuthakappattom right is not alienable and as the judgment debtor does not have disposing power or possess saleable interest in the property the sale cannot be had. It is against this finding of the learned appellate Judge that the decree holder has come up in second appeal.

(2.) It is true that the property is not liable to sale in execution unless the judgment debtor has a disposing power over it for his own benefit. R.26(b)(i) of the Kuthakapattom Rules provides that:

(3.) In Rajanagam Aiyer v. Ayisha Veevi (43 TLR 466), Venkatarama Iyer, J., (Subramania Iyer, J., concurring) held that a vesting order under S.16 of the Insolvency Regulation could be passed in respect of Kandukrishi lands in the occupation of the insolvent. An examination of this decision shows that the view of the learned Judge was based on the following grounds: --