AMMAD Vs. POKKAN

JUDGEMENT

(1.) MR. Sreedharan then urges that two decisions of the madras High Court, namely, Gopal Udayar v. Mangala Udayar (74 L. W. 601) and meenakshisundara Gramani v. A. D. Ramachandra Mudaliar (74 L. W. 654), apply to this case. I may straightaway observe that the second of the decisions cited by mr. Sreedharan relates to execution and therefore that does not apply to the present case. The other decision is under Madras Act I of 1955. S. 3 (2) of that act reads. "no suit for recovery of a debt shall be instituted, and no application for execution of a decree in respect of a debt shall be made, against any agriculturist in any civil or revenue Court before the expiry of four months from the commencement of this Act. " S. 3 (1) of Act XXXI of 1958, which relates to execution of decrees, is in these terms: "no application for execution of a decree in respect of a debt shall be made against any agriculturist in any court before the expiry of six months from the commencement of this Act. " It appears that S. 3 (1) of Act XXXI of 1958 dealing with execution of decrees is practically in the same terms as S. 3 (1) of Madras Act i of 1955. But sub-section 2 of S. 3 of Act XXXI of 1958 dealing with suits reads: "where a creditor files a suit for recovery of a debt before the expiry of six months from the commencement of this Act or after the agriculturist has paid or deposited the sums and instalments specified in s. 4 and, during the period when he is so entitled to pay, the court shall in decreeing the suit direct the plaintiff to bear his own costs and to pay the costs of the defendant who is an agriculturist, except in cases where the claim would have been barred by limitation had no such suit been filed. . . " From this sub-section it is clear that the filing of a suit is not barred under Act XXXI of 1958 unlike under S. 3 (1)of Madras Act I of 1955. I had occasion to consider this question in Sankaran v. Kumaran (1962 KLT. 390) wherein I observed that sub-section (1) barred only applications for execution of decrees and regarding suits there was no such bar under sub-section (2 ). I observed further, that, as a matter of fact, sub-section (2) contemplated the filing of suits. In the later Division Bench ruling already referred to, namely, Vellantakath Puthiyapurayil Athrumankutty v. Mukkadi Parambil Chovvara (C. R. P. No. 356 of 1961), the Division Bench also observed that S. 3 (2) did not bar institution of suits; on the contrary, it expressly contemplated the institution of suits by creditors in time to save limitation.

(2.) IF S. 3 (2) is scrutinised what appears is that even during the period when the debtor is entitled to pay the debt in instalments and even after he has paid the sums and instalments specified in S. 4, the creditor may file a suit to save limitation. That being the position under S. 3 (2) of Act XXXI of 1958, the Madras ruling cited by Mr. Sridharan cannot apply to suits falling under that sub-section. Srinivasan J. of the Madras High Court has based his judgment on the reasoning that under S. 3 (1) of Act I of 1955 there was a clear bar of suit for the recovery of a debt before the expiry of four months after the commencement of the Act and that reasoning cannot obviously apply to suits under Act XXXI of 1958. Whether the reasoning will apply to execution petitions depends on other considerations and other provisions of Act XXXI of 1958 and it is not necessary for me to pronounce any opinion on that question in this case.