GOVERNMENT OF KERALA Vs. KUMARAN NAIR

JUDGEMENT

(1.) Defendants are the appellants. They are the Government of Kerala and the Tahsildar, Kunnathunad Taluk. The suit was one filed by the respondent for injunction restraining the appellants from proceeding against the plaint schedule properties under the Revenue Recovery Act for recovery of certain dues to the government. An amount of Rs. 7700/-had been granted to the respondent under the Travancore-Cochin State Aid to Industries Act. As security for repayment of the said amount, the respondent executed the mortgage Ext.B1 on 13-2-1957 over his lands situated in Kunnathunad and Mazhuvannoor village. It was provided in Ext.B1 that if the amount due could not be recovered from the mortgaged properties, Government may proceed against the respondent personally as also against other properties of his.

(2.) The mortgaged properties were in the possession of tenants who had fixity of tenure under the Land Reforms Act, with the result they became unavailable for being proceeded against for recovery of the dues under the mortgage. The respondent having defaulted in repayment of the amount due, the appellants initiated proceedings under the Revenue Recovery Act for realisation of the dues. They attached certain other properties belonging to him whereupon he filed the instant suit for the relief mentioned earlier. It was the respondent's contention that his personal liability had become barred by the lapse of three years from the date of the mortgage and therefore, the appellants were not entitled to proceed against his other properties. This plea found acceptance with the lower appellate court, who decreed the suit, in reversal of the Munsiff who had dismissed it for want of notice under S.80 C.P.C. It is this decree that is challenged in the second appeal.

(3.) The reason slated by the lower appellate court to decree the suit is that the respondent's personal liability had become barred on the expiry of three years from the date of Ext.B1 . The court went further and held that even the mortgage had become time barred after the expiry of twelve years from its date, by the time the recovery proceedings were initiated in 1977. Either way, the lower appellate court held that the recovery of the amount due to the appellants had become barred by time, and therefore the proceedings under the Revenue Recovery Act were liable to be restrained.