VARKEY MATHEW Vs. VELAYUDHAN PILLAI

JUDGEMENT

(1.) The short point for decision in this second appeal is whether the order rejecting an application under S.7 of the Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958) is appealable. The appellant and the respondent are prior and subsequent mortgagees respectively, each of whom obtained a decree on his mortgage without impleading the other and purchased the mortgaged property in execution. Afterwards, the respondent sued in O. S. 462 of 1951 to redeem the appellant, and in that suit, the appellant as the earlier purchaser of the property, sought to exercise his right to redeem the respondent. The court gave certain directions as to this without allowing to the appellant the benefit of the Act as desired by him, but his right to make an application under S.7 of Act 31 of 1958 was expressly reserved and the decree itself was made subject to it. The appellant then made the application under S.7, for amendment of the decree. It was numbered and registered as O. P. 60 of 1960 in the court which passed the decree in O. S. 462 of 1951, and not as an application in that suit. The first court by order dismissed the application on the merits, and the appeal preferred against the order was itself dismissed, as no appeal was provided by the Act against an order refusing to amend the decree under S.7.

(2.) In second appeal, the appellants learned counsel relied on the following dictum in R.M.A.R.A. Adaikappa Chettiar v. B. Chandrasekhara Thevar AIR 1948 PC 12 :-

(3.) The only difference I am able to perceive in the present case, is that although a decree had been passed in the suit as in the case cited, the motion under S.7 was not made by an interlocutory application in the suit, but by an original petition. This ought not to make any difference in substance, when the court in which the application was made, is the same as the court which passed the decree in the suit. Following the dictum of the Privy Council I hold, that the present second appeal and the appeal before the Additional District Judge were competent. Accordingly the order of the Judge dismissing the appeal is hereby set aside and the case is sent back to him for disposal on the merits. No costs in this court.