ATHICHAN KOCHU Vs. MATHAI

JUDGEMENT

(1.) THIS appeal is by the first counter-petitioner in a petition under S. 8 of the Kerala Agriculturists Debt Relief Act, XXXI of 1958. He denied the transaction of debt. Ext. P-1 is the hypothecation on which the petition by the creditor is based. The Munsiff held the hypothecation not genuine and therefore dismissed the petition; but the Subordinate Judge, on appeal, has reversed him and found Ext. P-1 to be genuine and remitted the petition for fixation of the amount payable under the Act. Hence, this second appeal.

(2.) COUNSEL for respondent contends that there lies no second appeal as under S. 23 (a) of the Act only one appeal is provided against an order under S. 8 sub-section (1 ). An order under s. 8 sub-section (1) can only be an order fixing the amount of the debt. The controversy here is as to the reality of the debt which is outside the scope of s. 8 sub-section (1 ). As the order under appeal is an adjudication that determines the rights of the parties with regard to a controversy in a civil matter, it is appealable under S. 96 CPC. and as the findings are divergent in the courts below the second appeal is competent under s. 100 (d) CPC. I hold the appeal competent.