KOORAN KURIAPPU KUNJIPALU Vs. KOORAN CHAKKU PAPPU

JUDGEMENT

(1.) Our learned brother Sukumaran, J. referred this case to a Division Bench as an important question of a recurring nature was said to arise in the revision and therefore an authoritative decision of this Court was considered desirable by the learned Judge. The question is whether a compromise decree in a suit for money could be reopened for amending the decree under S.8(2) of the Kerala Agriculturists' Debt Relief Act, 11 of 1970. There is another controversy and that is whether the date in this case is a date falling within the purview of Act 11 of 1970.

(2.) When the decree holder filed an application for execution of the decree passed against the judgment debtor, he filed I.A.No. 412 of 1981 seeking amendment of the decree under S.8(2) of Act 11 of 1970. This provision enables a person to apply for such amendment of a decree for repayment of any debt if the judgment debtor is an agriculturist. Such amendment is to be made so as to apply the provisions of the Kerala Agriculturists' Debt Relief Act to the decree. In the case before us the suit was based upon a promissory note executed by the defendant in favour of the plaintiff in 1971 and when the case came up for trial the defendant withdrew his contentions. A decree was passed as agreed to by the parties. It is agreed that in the written statement of the defendant he did not seek the benefit of the Kerala Agriculturists' Debt Relief Act 11 of 1970 so much so the withdrawal of his contentions did not involve withdrawal by him of any contention as to the benefit of the Act. He seeks the benefit of the Act because, according to him, he is an agriculturist a fact not in dispute and further the debt though under a promissory note of 1971 is really a debt incurred in 1968 under a promissory note executed then. His case was that the note in 1971 was only a renewal of the earlier note. Since the basic question would be whether the debt falls within the purview of the Act the finding of the court below on this question is of relevance. That court finds that the debt cannot be said to be incurred by the petitioner before the commencement of the Debt Relief Act on the ground that it was in renewal of a note executed in 1968. It proceeds to observe that no evidence was adduced with respect to that contention in the suit or in the proceeding before him and even assuming that it was so, by agreeing to the compromise after withdrawing all the contentions it was not open to the judgment - debtor to plead that the debt was incurred before the commencement of the Debt Relief Act. Whether it is open to the judgment debtor to plead so is the main question arising for decision and we will advert to that shortly. But the learned Judge is not right in assuming that a debt incurred in 1968 under a promissory note and renewed in 1971 under fresh note does not fall within the scope of the Act. The observation as to absence of evidence is evidently erroneous as the plaint itself refers to the renewal of the 1963 note. The reply notice of the defendant is seen produced in the case as Ext. A1. That reply notice mentions that the note of 1971 was in renewal of the note of 1968 and it is with reference to that the plaint averments have been made which averments do show that the plaint note is in renewal of an earlier note of 1968 and incurring of the liability is prior to the commencement of Act 11 of 1970.

(3.) Now we will advert to the question whether a debt falls within the scope of the Act when it is under a promissory note or other transaction entered into renewing an earlier transaction which was before the amendment of the Act. It is true that on the happening of such an event the parties are bound by the obligations under the fresh contract and their rights also will be defined by the terms of such contract. What we have to consider is the definition of the term 'debt' in the Act. The term 'debt' is defined in S.2(4) of the Act as meaning any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of the Act, whether payable under a contract, or under a decree or order of any court, or otherwise. We need not advert to that part of the definition which may not be relevant for our purpose. One of us in the decision in Philippose Thomas v. State Bank of Travancore ( 1969 KLT 922 ) bad to consider the similar definition of the term 'debt' in S.2(c) of the Kerala Agriculturists' Debt Relief Act 31 of 1958 in the context of a plea that if such a debt incurred prior to the commencement of the Act is renewed under afresh contract the benefit of Act 31 of 1958 will not be available to the debtor. Dealing with this Court said: