KARTHIAYINI AMMA Vs. VASUDEVAN PILLAI

JUDGEMENT

(1.) The appellant obtained a decree against the respondent for redemption of a mortgage. After the decree, when the Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958) came into force, the appellant sought to invoke the provisions of S.11 and claimed relief under it. The Munsiff dismissed the petition, holding that the mortgage is excluded from the purview of S.11 by reason of S.25(c). The appellant appealed against the Munsiffs decision to the Additional District Judge Parur, who dismissed the appeal on the preliminary ground that no appeal lay against an order under S.11. This Second Appeal is directed against the order of the Additional District Judge.

(2.) S.23A of the Act is the only provision in the Act conferring a right of appeal, & this is conferred only in respect of orders specified in that section. An order under S.11 is not one of them, and was not therefore intended to be appealable. But it was argued, that the order in the present case must be deemed to have been passed by the Munsiff under S.47 of the Civil Procedure Code in execution of the decree for redemption. For one thing, by invoking S.11 the appellant is not executing arty of the provisions of the decree, but is seeking to enforce certain new rights which the legislature has conferred on mortgagors in general. For another, the legislature has also prescribed a special procedure for doing so. Under sub-s.(3) of S.11, the mortgagor shall pay court fees as for a suit for redemption on the balance of the mortgage amount remaining after the prescribed deposit is made. Then the court is called upon to put the mortgagor in possession of the property. The mortgagee is to be allowed by a special order to recover by sale of the mortgaged property, the balance of the amount due in specified instalments and this order is to be deemed to be a decree. In my opinion, it is impossible to dovetail these provisions into the process of execution of a decree. I am in agreement with the Additional District Judge in holding, that the proceeding initiated by the appellant under S.11 was an original proceeding and not a proceeding in execution of the decree allowing redemption on different terms, even granting that the existence of the decree created no bar to the enforcement of the right under S.11. For these reasons the Second Appeal fails and is dismissed with costs. Leave to appeal granted.