HARIFFA BEEVI Vs. MADHAVAN

JUDGEMENT

(1.) The judgment of the Court was delivered by Bhaskaran, J.- The respondent (plaintiff decree holder) had, in a suit on the foot of a promissory note, attached an item of immovable property belonging to the judgment debtor, who, while the suit was pending and the attachment was subsisting, executed a sale deed dated 6th February 1970 in respect of the property in favour of one Dr. Ramla Beevi, from whom, subsequently, the appellants are said to have purchased it under a sale deed dated 16th February 1973. The suit was decreed on 9th November 1970. In the execution that followed, the appellants filed an application for stay of the proceedings under S.3 of the Kerala Debtors (Temporary Relief) Act, 1975, (Act 30 of 1975), for short the Act. The application having been dismissed by the court below, this appeal has arisen. S.3 of the Act, Explanation omitted, reads as follows:

(2.) Sri P. C. Chacko, the counsel for the appellants, in support of his argument, cited the decision of the Division Bench of the Madras High Court rendered by Varadachariar and Abdur Rahman, J. J. in Perianna Goundan v. Sellappa Goundan and others ( AIR 1939 Mad. 186 ), quoted with approval by the Supreme Court in Nageswaraswami v. Viswasundara ( AIR 1953 SC 370 ) and followed by a Division Bench of this Court in Rahima Beevi v. The Court Liquidator (The Millions Bank Ltd., Alleppey) ( 1957 KLT 809 ). The facts of the case decided by the Division Bench of the Madras High Court were as follows: - A mortgage was executed in the year 1929. The mortgagor who was an agriculturist sold to A the equity of redemption in a portion of the mortgage property in 1930. In 1933, B who was also an agriculturist purchased the same from A. In a suit upon the mortgage, instituted in 1934, the mortgagee claimed to bring to sale the properties purchased by B. Subsequently B applied for relief under the Act. The Division Bench held that B was entitled to get relief under S.8 of the Madras Agriculturists Relief Act as the liability sought to be enforced was based on the original mortgage of 1929 and that his purchase in 1933 was not the basis of any new liability. Speaking for the Bench Varadachariar, J. observed as follows: -

(3.) The counsel for the appellants also referred to the ruling given by a Division Bench of this Court in Iyappu Varghese v. Palai Central Bank Ltd. ( 1959 KLT 955 ). In that ease the 3rd defendant in the suit who claimed benefit of the Agriculturists' Debt Relief Act (Act 31 of 1958) was a person who had purchased the property long prior to the institution of the suit, though the purchase was subsequent to the creation of the charge in favour of the plaintiff Bank. Sankaran, C. J., who spoke for the Bench, had no hesitation in holding that the debt being a prior charge on the property, the plaintiff could enforce the charge against the property, and in that view of the matter the 3rd defendant also was a debtor within the definition as given in Act 31 of 1958. It was also observed in that decision that the liability of the property of which the 3rd defendant had become the purchaser was sufficient to attract the definition of the term 'debtor'.