RAMASUBBA IYER Vs. DAVEED CHRISTUDAS

JUDGEMENT

(1.) In execution of a decree, five items of properties referred to as items 1 to 5 were purchased in auction by the 2nd plaintiff in one lot, on the 7th Edavom, 1117, for Rs. 743/-. After confirmation, items 2 to 5 were delivered to him on the 28th Meenom, 1118, but the delivery of possession of item 1 did not take place on account of obstruction, and a fresh suit about it, is said to be pending. The Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958) having come into force on the 14th July, 1958, the 7th defendant, a son of the judgment debtor and the respondent in this second appeal, applied under S.22 for setting aside the sale and made a deposit of Rs. 371.50, being half the purchase money. Plaintiffs 3 and 4 who are the legal representatives and are the appellants in second appeal contended, that the application is not maintainable as the possession of items 2 to 5, though not of item 1, had already passed to the purchaser, that in any event they are entitled to be paid Rs. 3000/- by way of value of improvements which they had effected on items 2 to 5 after the properties came into their possession, and also an amount of Rs. 1500/- for prior encumbrances which they had cleared, and that the deposit made was not of the full amount as prescribed by S.22. The execution court ordered that items 2 to 5 having been delivered to the purchaser, the application can be allowed with respect to item 1 only, but on the respondent's paying the purchase money for all the items and not of the proportionate part thereof in respect of item 1. The respondent appealed to the Additional District Judge who allowed the application because possession of the entirety of the properties sold had not passed to the purchaser in terms of the section and set aside the sale of all the items. It is this order which has led to this second appeal.

(2.) The Respondent has taken the preliminary objection that the second appeal is not maintainable. Before dealing with it, it is desirable to advert to the contentions and to examine how they have been disposed of. After the Judge has disposed of the appeal, in Sayed Mohammed Beevi Amma v. Mathai Devasia, 1960 KLT 163 , a bench of this court has construed the words "the said property" occurring in S.22(1), clause (ii) to mean "the entire property sold" and has held, that under the clause when the possession of the whole of that property has not passed but only a portion of it, the sale may still be set aside, on compliance with the other conditions prescribed. The bench decision is binding upon me; it has been followed in C. R. P. 613 of 1962. On this point the view taken by the Judge is correct.

(3.) The second proviso to sub-s.(1) of S.22 reads: