THANKAPPAN NAIR Vs. MATHEW

JUDGEMENT

(1.) The legal representative of the judgment debtor has preferred this Civil Miscellaneous Appeal from the order dismissing his application under S.22 (3) of the Kerala Agriculturists Debt Relief Act (31 of 1958) for cancellation of the court sale of property in execution of the decree. The ground on which the application was dismissed was that the applicant had failed to deposit the first instalment of the debt due on 14-1-1959. In reaching this conclusion the court below relied on the decision of this court in Kurian v. Mary Lopez ( 1959 KLT 917 ).

(2.) Counsel for the appellant urged that in view of the amendment of S.4 of Act 31 of 1958 by Act 2 of 1961, the deposit of the first instalment has become unnecessary. The relevant sections may be extracted:

(3.) It is argued that notwithstanding the imperative provision in sub-section (3) that the first instalment of any debt payable under sub-section (2) shall be paid before the expiry of a period of six months, the effect of sub-section (5) is that this need not be done and that the decree holders remedy is only to execute and recover the first instalment just like any other instalment. It is unnecessary to consider the correctness of this proposition as this is a case falling under S.22(3) which provides for setting aside the sale only on deposit of the first instalment. Although the debtor is enabled to pay the debt as provided in S.4 and 5, in a case covered by S.22(3), the latter section contemplates an order setting aside the sale; and this order is to be passed only on deposit of the first instalment which according to S.4(3) must be paid within six months of commencement of the Act, ie., 14-11-1959. The argument, if accepted, would mean that all court sales within the scope of S.22 (3) which have not been confirmed will automatically stand set aside by reason of the amendment of S.4. If such were the intention of the Legislature, S.22 (3) also should have been suitably amended. The retention of S.4 (3) and 12 even after amendment is also significant. In my opinion S.22 (3) read with S.4 (3) leads to the conclusion that an order setting aside the sale can be passed only on deposit of the first instalment. That not having been done, the order of the court below does not call for interference.