ITTAN Vs. SUBRAMANIA IYER

JUDGEMENT

(1.) THIS O. P. has been referred to a Division Bench by our learned brother Govindan Nair, J. , in view of the importance of the two questions arising for determination. The questions are: (1) Whether the petitioner is a transferee pendente lite of the judgment-debtor within the meaning of S. 22 (1) of the Kerala Act XXXI of 1958; (hereinafter referred to as the Act) and (2) Whether the time prescribed if any, for making the deposit for preferring an application under S. 22 (1) of the Act can be extended.

(2.) THERE was a decree dated 14-6-1937 in O. S. No. 509 of 1112, Munsiff's Court, Meenachil, on the basis of a hypothecation. In pursuance of the said decree, property of the extent of 1. 70 acres was sold on 22-1-1955 and purchased by the decree-holder for Rs. 750/ -. The petitioner in the O. P. , it is agreed, is a transferee pendente lite from one of the judgment-debtors under the said decree, having purchased 1. 32 acres out of the property sold. The Kerala Act XXXI of 1958 came into force on 14-7-1958. On 13-1-1959 the petitioner filed an application, C. M. P. 237/59 under S. 22 of the Act to set aside the sale in so far as it related to the extent of 1. 32 acres. On 15-1-1959 he deposited one-half of the purchase-money, calculated pro rata on the basis of the 1. 32 acres in which alone he was interested. The deficit amount of Rs. 76 was deposited on 25-9-1961, C. M. P. No. 5582/61 was filed to amend the earlier petition, so as to set aside the sale in its entirety, and c. M. P. No. 5584/61 was filed to condone delay. These two C. M. Ps. were allowed by the trial court. THEREafter, the main C. M. P. No. 237 of 1959 was dismissed on the ground that the petitioner was not a judgment-debtor entitled to the benefits of S. 22 of the Act. The order is evidenced by Ext. P-1.

(3.) GOING by the language of the section, it would appear that the prescription of time of one year applies only to the application to the Court, and not to the depositor the amount. Our learned brother Govindan nair, J. was also inclined to take this view. Although this might be so, it seems to us reasonable to construe the section as requiring that the deposit must, be either anterior to, or at least synchronise with, the application. The question then arises, whether there is any power to extend the time for deposit beyond the time prescribed for filing the application ? S. 20, Clause. 2 of the Act provides: "the provisions of S. 5 of the Indian Limitation Act, 1908 shall be applicable to all applications and appeals filed under this act. "