PAULOSE Vs. KUNJUNNY

JUDGEMENT

(1.) In this Revision Petition Mr. George Varghese learned counsel for the petitioner challenges that part of the order of the learned District Judge of Alleppey wherein that court has held, in a matter coming under S.11(6) of Act 31 of 1958, that the petitioner will not be entitled to the benefit of the discharge of the amount by payment in 17 equal half yearly instalments.

(2.) When the petitioner moved the Trial Court for relief under S.11(6) of Kerala Act 31 of 1958 that court took the view that he will be liable to pay interest at the contract rate till date of the Act and that he will get the benefit of the rate of interest under the Act only after the commencement of the Act. But the Trial Court held that the application filed by the petitioner for relief is barred and therefore in the end rejected the application. The petitioner challanged that order before the learned District Judge of Alleppey in A. S. 103/62. The learned Judge held that the view of the Trial Court that in matters coming under S.11(6) of the Act, the debtor will be liable to pay interest at the contract rate till commencement of the Act is erroneous. The view taken by the learned District Judge is quite consistent with the opinion expressed by a Full Bench of this Court in the decision reported in Kelu v. Ramakrishnan ( 1964 KLT 781 ). According to the Full Bench decision, it is now clear that in matters coming under S.11(6) of the Act, the debtor is liable to pay interest only at the rate of 5% right from the date of the lease back. To that extent the order of the learned District Judge is in favour of the petitioner.

(3.) But the learned District Judge has taken the view that the petitioner is not entitled to the benefits conferred by S.4 of the Act, namely of discharging the liability of the mortgage amount in 17 equal half yearly instalments. The view of the learned District Judge appears to be that there is a provision in Sub-s.(6) of S.4 which clearly states according to the learned Judge that the provisions of S.4 shall not apply to mortgages to which S.11 applies except as provided in sub-s.(6) of that -section. The view of the learned Judge appears to be that there is no other provision made in sub-s.(6) of S.11 making the provisions of S.4 applicable.