CHACKO PYLEE Vs. MADHAVI AMMA

JUDGEMENT

(1.) This Civil Revision Petition arises from proceedings under the Kerala Agriculturists Debt Relief Act, 31 of 1958. We shall for convenience refer to the parties as mortgagor and mortgagee. The petition in the Trial Court was by the mortgagor who is the petitioner before us. He had executed a usufructuary mortgage to the respondent mortgage for Rs. 600/- and had taken the property back on lease. A decree was obtained by the mortgagee in O. S. No. 103 of 1954 for recovery of arrears of rent. The mortgagor has paid Rs. 963.93 towares rent. According to the mortgagor the transaction was to be viewed as a simple mortgage under S.11(6) of Act 31 of 1958 and the debt treated as discharged as more than the principal and a moiety thereof had been paid by him. The mortgagee contended that a sum of Rs. 591.63 was still due to her. The Trial Court upheld the mortgagor's contention and allowed the petition declaring that the whole debt was discharged by payments made by the mortgagor. On appeal by the mortgagee the learned District Judge of Ernakulam held that S.5 of the Act could apply only if more than a moiety of the principal was outstanding as interest on the date of the Act and that payments appropriated by the mortgagee towards rent could not be reopened. The order of the Trial Court was accordingly set aside and the petition was remanded for fresh disposal.

(2.) Miss Annamma Alexander, counsel for the petitioner, contended that whatever may have been the position before Act 31 of 1958 was amended, the view of the lower appellate court could not be sustained after S.5 of the Act was amended by Act 2 of 1961. S.11 contains special provisions regarding usufructuary mortgages by agriculturists and Clause.6 of the section provides:

(3.) S.11 (6) provides that all the provisions of the Act shall apply to a case of a mortgage and lease back which is to be treated as a simple mortgage for the purpose of the Act. This should necessarily include S.5 also according to which the sum due at the commencement of the Act is limited to the principal and a moiety thereof, inclusive of payments made before the commencement of the Act.