MOHAMMAD KUTTY Vs. MOHAMMED KUNJU MUSALIYAR

JUDGEMENT

(1.) The decree holder, who lost in his attempt to defeat the application of the respondent to have the debt paid in staggered instalments, has come up in second appeal. He has raised two contentions before me which I will state and proceed to consider presently.

(2.) The appellant submits that the respondent is not an agriculturist. As the courts below have pointed out, the respondent has an interest in agricultural property, and indeed the very property, against which execution is being levied, is agricultural property, and there is nothing placed on record by the decree holder to make out any of the exclusions set out in S.2(a)(i) to (iv). I, therefore, agree with the courts below that the respondent is an agriculturist.

(3.) The other objection raised by the appellant is that the respondent is not a debtor and that he cannot claim the benefits under the Act. It is true that a debt under the Act must be due from or incurred by an agriculturist, and further, a debtor includes his heirs, legal representatives and assignees provided they are also agriculturists. The facts of the present case, as set out by the courts below in their judgments, are that the judgment debtor, after the property in question was attached by the decree holder through the court, alienated the item when the attachment was subsisting. In fact the respondent is interested in protecting his property against the attachment and sale thereof for realisation of the decree amount. S.64 of the C.P.C. lays down that where an attachment has been made any private transfer of the property attached, contrary to such attachment, shall be void as against all claims enforceable under the attachment. So much so, the attaching decree holder can proceed against the alienated property in the hands of the respondent and realise his decree amount by bringing the property to sale. In this sense the debt, which undoubtedly includes a decretal liability, is one due from the respondent. Liability may be personal or on account of the ownership of property. Such property liability also may become a debt and the present case is an instance. It is not as if property liability in the hands of the owner of the land can arise only if there is a charge or a mortgage. It can arise even if on account of the prior and subsisting attachment the decretal liability can be recovered from the property. In this sense, the assignment of the property carried with it the liability to pay the debt within the meaning of S.2(fff).