MATHULLA MATHEW Vs. ABRAHAM SKARIA

JUDGEMENT

(1.) REVISION Petitioners are defendants in the suit O. S. No. 19 of 1967 on the file of the Subordinate Judge of Pathanamthitta. Respondents herein filed I. A. No. 194/1971 praying that they may be allowed to avail of the benefits conferred under S. 11 of Act 11 of 1970. The learned subordinate Judge allowed the petition. It is the correctness of the order of the learned Subordinate Judge, allowing the petition, that is being challenged in this revision petition. Sri. K. N. Narayanan Nair, learned counsel appearing for the revision petitioner, submits that the learned Subordinate Judge has exercised the jurisdiction vested in him wrongly in allowing the petition for amendment. It is submitted that the proper remedy for the respondents herein, if they so choose, to avail of the benefits conferred under S. 11 of Act 14 of 1970, is to move the court by an application, not by suit or by amending the suit. In support of his contention he has brought to my attention two decisions of this Court. One is the Full Bench decision in Chandukutty Arjunan (1964 KLT. 849 ). In Para. 7 of the judgment Govindan Nair, J. has stated as follows; "in the result, we dismiss this appeal. We however direct the respondents if they wish to avail themselves of the benefit of S. 11 to move a proper application within a month of this date, on the trial side of the Court, and pay court fee thereon in accordance with the provision in Sub s. 3 of S. 11. If such an application is moved, the amount said to have been deposited, a sum of Rs. 400 pursuant to the Execution Petition dated 1011959 will be given credit to and the application moved by the respondents, dealt with on the merits in accordance with the provisions in S. 11 of the Kerala Agriculturists Debt Relief Act, 1958. " Sri T. M. Cheriyan, learned counsel appearing for the respondents herein, points out that the question regarding the procedure to be adopted in applying for the relief under S. 11 of Act XXXI of 1958 did not really arise directly in that case. It was, it is pointed out, a case wherein the real dispute was as to whether a petition under S. 11 (3) of the said Act would lie in a case where there was already a decree on a hypothecation bond and the decree was actually pending in execution. It was only incidentally, by way of giving a direction to the plaintiff to avail of the benefit, if he so chooses, as his appeal was not maintainable, that reference is made to the application to be filed. All the same, considering the matter in its true perspective. I feel that the correct position is that it is only by an application that the respondent herein can move for relief under S. 11 of Act 11 of 1970. The other decision cited by learned counsel appearing for revision petitioner is the one reported in Vasu v. Chakki Mani (1961 KLT. 825 ). In that case also, the learned counsel appearing for the respondent points out, there was no direct question involved as to whether the procedure for applying for relief under S. 11 of Act XXXI of 1958 should be in the form of an application or otherwise. The one question involved in that case was the correctness of the court fee paid, and the other was whether the proceedings were bad for non joinder of parties. The observation on which the learned counsel appearing for the revision petitioner relies is contained in Para. 5 of the judgment of Raman nayar J. , as he was then, which reads as follows: "the suit is for premature redemption on payment of half the mortgage money in accordance with S. 11 of Act 31/58. As that section stood at the time the suit was brought, it merely declared the right of the agriculturist mortgagor to redeem a mortgage before the expiry of its term and on payment of only half the money due, suffering a decree for the balance. It did not specify how the mortgagor was to move the court for the purpose, and hence he had to pursue his ordinary remedy of a suit. That was what the plaintiffs here did, and since S. 11 (3) expressly said that the mortgagor shall pay court fee, as on a suit for redemption, only on the balance of the mortgage amount, namely, half the mortgage amount it would appear that the court fee paid in the suit on such amount was correct. However that might be, S. 11 of the Act has now been retrospectively amended by Act 2/61 by saying the court is to be moved by an application and not by suit so that its provisions cannot apply to a suit for redemption. But I am told that the plaintiffs have applied to court for converting their suit into an application under S. 11, and, if that be so, and if the application is allowed, no question of the adequacy of the court fee paid will arise at all. " That observation clearly is to the effect that for availing of the benefit under S. 11 of Act XXXI of 1958 what is contemplated is an application, not a suit.

(2.) A reading of sections of Act 11 of 1970 as a whole will convince that only an application, not a suit is contemplated by the legislature. Sub-s. (2) of S. 11 reads as follows: ' (2) Notwithstanding that the period of the mortgage has not expired, a mortgagor who is an agriculturist shall, on application, be entitled, subject to the provisions of subsections (4) and (6), to recover the mortgaged property on depositing in court (a) one third of the mortgage amount" When this is read along with sub-s. (5) which reads: "an order passed under sub section (4) shall be deemed to be a decree", there cannot be any doubt that what is contemplated is an application, not a suit for the purpose of obtaining the benefit under s. 11 of the Act. Sub-s. (2) of S. 21 of the Act which deals with appeals reads as follows: "an order passed in appeal under sub section (1)shall be final. " From sub-s. (2) of S. 21 it is clear that the section provides only an appeal in as much as the appeal from the order shall be final.

(3.) IN the light of the foregoing discussions I hold that for availing of the benefits under sub-s. (2) of S. 11 of Act 11/1970 the proper procedure is to move the court by an application, not by a suit. It therefore follows that a redemption suit cannot be amended incorporating an alternative or additional relief under S. 11 of Act 11/1970 also.