MARY Vs. GOVINDAN

JUDGEMENT

(1.) WHEN this petition came up before our learned brother, madhavan Nair, J. , he referred it to a Division Bench for decision as it was felt that the decision in Damodaran Pillai v. Kanta Kochukunju (1961 KLT. 368)and the decisions of the High Court of Madras relied on in that judgment required further consideration. It was also observed in the order of reference that the decision reported in 1961 KLT. 368 in which the point for decision was whether an insolvent whose properties vested in the Official Receiver could apply for relief under S. 15 of the Act could be distinguished on the facts of this case. The two points which arise for decision are: (i) whether an insolvent whose properties vest in the receiver can apply for relief under S. 15 of Act 31 of 1958 and (ii) whether an application by the legal representatives of an agriculturist-debtor for such relief is maintainable?

(2.) WE are of opinion that the first point need not be decided in this as the case can be decided on the second point. WE may however observe that in addition to the difference in the definition of 'agriculturist' in the Madras and Kerala Acts, there is specific provision in S. 21 of the madras Act (IV of 1938) which enables an insolvent to seek such relief in certain cases. Apart from this, an agriculturist who applies for relief under s. 15 has to make a statement that he unconditionally leaves all his assets to the control of the Court. WE do not see how a person whose assets are no longer with him can do so. However we may observe that the decision in 1961 KLT. 368 is of a Bench and that if another Bench feels doubt about its correctness, the proper course would be to refer the case to a Full Bench. Such a course is not necessary in this case as the case can be decided on the second point.

(3.) THE Civil Revision Petition is accordingly dismissed but in the circumstances we make no order as to costs. Dismissed.