CHERUKUTTY MATTUVAYIL CHANDUKUTTY Vs. THOYALI KURINHOLI ARJUNAN

JUDGEMENT

(1.) This is an appeal by a usufructuary mortgagee. A decree for redemption was passed against the appellant at the instance of the predecessor in interest of the respondents on 12-3-1956. Thereafter an application was made by the decree holder purporting to be under O.21 R.35 of the Code of Civil Procedure read with S.5 and 11 of the Kerala Agriculturists Debt Relief Act, 1958 on 10-1-1959. This was opposed by the appellant on the ground that the application is not maintainable. The objections taken were that S.11 of the Kerala Agriculturists Debt Relief Act, 1958 can have no application as the section envisages the existence of a mortgage and there was none at the time of the application as a decree on the mortgage had intervened. It was also urged that S.11, in any event, cannot apply and that the correct section, is S.7. There was a further contention that the application which was apparently moved on the execution side is not maintainable. These contentions have been negatived by the first court as well as by the appellate court.

(2.) In view of the decision of the Federal Court reported in Thota China Subba Rao and others v. Mattapalli Raju and others (AIR 1950 FC 1) it is not seriously disputed before us that the mortgage which formed the basis of the decree has not ceased to exist by virtue of the decree. We have therefore to proceed on the basis that if there is no other impediment, S.11 must be available to the respondents. The learned Advocate General who appears for the appellant however urges that the decree passed in this case is a decree for repayment of a debt and in regard to such decrees there is a specific provision in S.7 of the Agriculturists Debt Relief Act, 1958, and that the only remedy available to the respondents is therefore to move for amendment of the decree under that section. S.7 runs thus:

(3.) It was contended that the decree in this case is a decree for repayment of the debt, and our particular attention was invited to clause (c)(i) of Sub-r.(1) of R.7 of O.34 of the Code of Civil Procedure wherein provision is made that in a preliminary decree in a redemption suit, the plaintiff may be directed to pay a certain sum into court. Reference was also made to Form No. 7-B in Appendix D of the Code of Civil Procedure relating to preliminary decree for redemption where on default of payment by mortgagor a decree for foreclosure is passed. Reliance is also placed on the decision of the Madras High Court reported in T. N. Krishna Iyer v. Nallathambi Mudaliar (1955 (I) MLJ 215) wherein the view has been taken that a decree of this nature can be considered to be a decree for repayment of a debt. This is what their Lordships said: