VARKEY Vs. SUBRAMONIA IYER

JUDGEMENT

(1.) THIS is an appeal by the defendants in OS. No. 41 of 1975 on the file of the Principal Sub Judge, Alleppey. Defendants' father executed a usufructuary mortgage in favour of the plaintiff on 5-3-1113. The mortgage was in respect of the plaint schedule properties. The mortgagor took the properties on lease from the mortgagee. The mortgagor filed A. D. R. A. 5 of 1959 for discharging the mortgage debt under the provisions of the Kerala agriculturists' Debt Relief Act (Act 31 of 1958) THIS petition was disposed of by an order dated 24-6-1960 evidenced in this case as Ext Al. Ext. A1 was pursuant to a compromise petition marked as Ext. A2 in the case. The mortgagor agreed as per the compromise petition to pay to the mortgagee an amount of Rs. 23,000/ -. A sura of Rs. 1,000/- was paid on the date of the execution of the compromise petition. The balance was agreed to be paid within three years with 5 per cent interest. On 20-6-1960, an amount of Rs. 2,000/-was paid to the plaintiff towards the amount due under the compromise. The defendants are the legal heirs of the original mortgagor. The balance amount was not paid to the mortgagee-plaintiff. Hence he instituted the suit for recovery of an amount r. 32,270/ -.

(2.) SEVERAL contentions were raised before the trial court including the contention that the suit was barred by limitation. The court below rejected all the contentions and decreed the suit. Defendants filed this appeal against the decree and judgment of the court below.

(3.) SHRI Balasubramanyam submitted that by virtue of two enactments, namely, the Kerala Agriculturists' Debt Relief Act (Act 31 of 1958)and the Kerala Agriculturists' Debt Relief Act (Act 11 of 1970), the plaintiff is entitled to an exclusion of three years period and so the total period that has to be reckoned for the purpose of limitation is not twelve years but fifteen years. The counsel submits that there was a bar in both the enactments for filing the suit and the bar in each enactment as far as the present suit was concerned, was for a period of 11/2 years and so the plaintiff got an additional period of three years for the institution of the suit.