BALAKRISHNA PILLAI Vs. VASUDEVAN

JUDGEMENT

(1.) THE revision petitioner is the judgment debtor in O.S. No. 192 of 1967. THE property of the revision petitioner was sold in court auction on 24-11-1969. On 2-1-1970 he filed an application to set aside the sale on the ground of material irregularity and fraud. THE Kerala Agriculturists' Debt Relief Act, 1970 (Act 11 of 1970) (hereinafter referred to as the Act) came into force on 14-7-1970. THE application for setting aside the sale was dismissed on 23-8- 1971. THE same day the revision petitioner filed E.A. No. 537 of 1971 under S.20 sub-s.(8) of the Act to set aside the sale depositing the amounts due for two instalments. THE execution court overruling the objection of the decree holder that the application is not maintainable since the first instalment due under the Act had not been deposited by the judgment debtor as required by S.20(8) within the time stipulated in S.4(3) of the Act and that such a deposit was a condition precedent for setting aside the sale, allowed the application and set aside the sale. In appeal the Subordinate Judge held that in order to have the sale set aside the deposit of the first instalment must be made by the judgment debtor within the time specified in S.4(3) of the Act and allowed the appeal relying on the decision of this Court in Thankappan Nair v. Mathew (1962 KLT 267). This appeal is against that decision.

(2.) THE learned single Judge before whom the appeal came up for hearing referred the case to a Division Bench which passed the following order of reference:

(3.) AFTER confirmation of the sale and after it became absolute, atleast in cases where the decree holder himself was the auction purchaser the debt might get discharged. Satisfaction of the decree will have to be entered in whole or in part even before the confirmation in cases the purchase was by the decree holder. (vide sub-r.2 of R.72 of O.21 of the Code of Civil Procedure). The words in sub-s.(8) of S.20 importing that the debt may be discharged even after the court sale, are meant apparently to clarify the position and place the matter beyond the realm of controversy that a debt subsisted even after a court sale, even if the purchaser was the decree holder himself. I would not attach any further importance to those words. It has also to be noticed that when a court sale had taken place and when there has been no application under R.89, 90 or 91 of O.21 or where such application had been made and disallowed "the Court shall make an order confirming the sale, and thereupon the sale shall become absolute". (vide R.92 of O.21 of the Code of Civil Procedure). There is no provision in the Act which arrests this process of confirmation which is obligatory as far as the court is concerned. It is difficult, if not impossible to conceive of a dual duty on the part of the court one opposed to the other; a duty to confirm the sale in accordance with R.92 of O.21 of the Code of Civil Procedure and a duty to set aside the sale under sub-s.(8) of S.20 of the Act. These duties cannot coexist. As I see it there are no such conflicting provisions. The provisions are reconcilable. A court executing a decree is not obliged to wait till three consecutive instalments are defaulted to confirm the sale. In fact it is obligatory on its part to confirm the sale in accordance with R.92 of O.21 of the Code of Civil Procedure. When the sale is confirmed the debt would cease to exist and there cannot be any further payments towards a debt or the discharge of a debt, which did not exist. Such confirmation can be stopped only if the sale is vacated. It is for that purpose that provision is made in S.20(8). But the section insists on deposit of the 1st instalment. If a deposit is not made before 14-1-1971 in the absence of extension of time there has been no extension of time in this case there would be no deposit of the 1st instalment. Any payment/deposit after the relevant date will not be a deposit of the 1st instalment though the payment/deposit may go in discharge of the debt. There is a specific date for the deposit of each instalment. This is clear from sub-s.(3) of S.4 When this provision is read with sub-s.(4) of S.14, it becomes quite evident that a particular deposit towards a particular instalment must be within the time stipulated in S.4(3) or the extended time allowed by court acting under S.14 (4). And the words "and on the deposit of the instalment thereof" in S.20(8) which read with S.4(3) and 14(4) leave no doubt that the deposit must be as envisaged in these sections. Sub- s.(5) of S.4 does not enlarge the time for deposit. When there has been no deposit of the 1st instalment the sale cannot be set aside if the wording of the section has to be given its natural grammatical meaning. If there has been a deposit of the first instalment the sale will be set aside. When the sale is set aside after such deposit no question of confirmation will arise. Not to insist on the deposit of the first instalment before the expiry of the due date, 14-1-1971, would be to ignore a part of the section. Judicial interpretation certainly cannot extend to wiping out of a part of the section. When the provisions of the section are very clear there is no scope for applying the rule in Eapen Thomas v. Varkey Thomas (1965 KLT 608).