ITTY SANKARAN Vs. ITTIYATHI KOCHUKUTTY

JUDGEMENT

(1.) The petitioner presents this Civil Revision Petition against the judgment of the District Judge of Kottayam dated 13th July 1949 dismissing his appeal (A.S. 255/1123) made against the order of the District Munsiff of Ettumanoor allowing D.R. P. No. 2/1121 filed by the debtor, 1st respondent in the appeal and in this revision, under S.16 of the Travancore Debt Relief Act, II of 1116, overruling the objections raised by the petitioner. The appeal was dismissed as not maintainable in law.

(2.) One of us on hearing this revision petition referred it to a Division Bench 'since the question regarding right of appeal against an order passed under S.18 of the D.R. Acts is an important one not decided so far'. The Division Bench referred the question to a Full Bench by the following order of reference:- .

(3.) It is necessary to refer to the facts of this case first. The petitioner as transferee of the decree in Small Caused Suit 872/1108 on the file of the Vaikom Munsiff's Court executed it and arrested the 1st respondent judgment debtor last in the latter part of 1120 for realisation of Rs. 200/- and odd due thereunder. Thereafter on 4th Mithunam 1120 the judgment debtor filed a petition in court alleging discharge of the decree and praying that satisfaction may be entered. On the same day he executed a deed of hypothecation in favour the 1st respondent in the D. R. P. for Rs. 300/- repayable with 12 per cent interest. The hypothecatee and the debtor have married sisters. The plea of discharge raised was found against and the application for recording satisfaction dismissed on 8-2-1121. On 1-3-1121 the judgment debtor was again arrested in execution of the decree and brought before court. On a representation that the debt would be soon discharged, the debtor was temporarily released from arrest and was not sent to jail. The Debt Relief Petition was presented by the debtor on 11-3-1121 before the Ettumanoor Munsiff's Court and an order staying execution of the decree was obtained. There are six respondents to the petition. The first is the aforesaid hypothecatee, the second is the petitioner and the third to sixth inclusive are the legal representatives of one Varkey to whom the debtor owed money under a promissory note on foot of which the said counter petitioners obtained decree in O. S. 232/1116 of the Meenachil Munsiff's Court. An amount of Rs. 400/- is stated to be due thereunder. The only asset shown by the debtor in his application is an item of immovable property purchased by him in the year 1120 for Rs. 200/- but which is stated in the application to be worth Rs. 500/-. The debtor's case is that the amount borrowed from the hypothecatee was utilised for improving the hypotheca that is the property purchased by him for Rs 200/-. In the Debt Relief Petition the debtor expresses his readiness to surrender the property to the court and claims an one fourth thereof, that is, property worth Rs. 125/- free from all liabilities. The first counter petitioner, that is the hypothecatee, claimed preferential payment of the principal amount of Rs. 300/- as also interest thereon at 12 % as a secured creditor. The 2nd counter petitioner, namely the petitioner here, contended that the debt alleged to be due to the 1st counter petitioner is unreal and that the hypothecation was resorted to as a result of a conspiracy between the parties who are relations, to defeat the debt due to him under the decree. It was further contended that in any event the alleged date of the debt being long after the Debt Relief Act came into force, the debt assuming it is real, cannot be regarded for purposes of the Debt Relief Petition. He also contended that the decree obtained by counter petitioners 3 to 6 in O. S. 232/1116 had been discharged and that nothing was due thereunder. He contended further that the debtor had been and was conducting a business which brought him large profits from out of which property of considerable value had been purchased by him in the name of his second wife for his benefit. It was also contended that subsequent to the obtaining of the decree the debtor had gifted his property to his second wife and children by the first, with a view to screen the same from the reach of creditors. It was contended that these items formed part of the assets of the debtor, that they include his residential house and that these assets not having been disclosed in the application and the debtor not having expressed his readiness to surrender these also to the Court for purposes of settling his liabilities, the application under the Debt Relief Act could not be maintained. Counter petitioners 3 to 6, that is the holders of the decree in O.S. 232/1116 were ex parte. The Munsiff after considering the oral and documentary evidence that was tendered before him reached the conclusion that the objections raised had not been substantiated and therefore allowed the petition by order dated 20-2-1123. The result of the order was that the assets of the debtor available towards the satisfaction of the two decrees mentioned in the petition would be Rs. 500/- minus Rs. 312/- (amount due to the hypothecatee) and Rs. 125/- (one fourth of the total asset to be reserved for the debtor), that is Rs. 63/- towards a total liability of Rs. 600. This has to be rateably distributed between the two decree holders who would get roughly one tenth of their amounts in full discharge and satisfaction of their claims. This was the order against which the petitioner appealed to the District Judge who, as already stated, threw it out on the preliminary point that the appeal was unsustainable.