NARAYANAN Vs. ELUNNY

JUDGEMENT

(1.) The appellant before us purchased in a court auction sale held in execution of the decree passed in O.S. No. 147 of 1969 on the file of the Sub Court, Trichur the equity of redemption over the decree schedule properties which were subject to a mortgage in enforcement of which the mortgagee had already obtained a decree in O.S. No 193 of 1971 of the same court When the mortgagee applied for sale of the property in execution of the mortgage decree the appellant applied to the executing court as per E A. No. 723 of 1976 for a stay of the proceedings under S.3 of the Kerala Debtors (Temporary Relief) Act, 1975 Act 30 of 1975. In that application he contended that he is a "debtor" within the meaning of the Act and that the liability due under the mortgage decree falls squarely within the definition of the expression "debt" contained in S.2(4) of the said Act and hence the proceedings are liable to be stayed. The lower court dismissed the application on the ground that even though the appellant (applicant) has become entitled to the rights of the mortgagor by virtue of the court auction purchase in O.S. No. 147 of 1969, inasmuch as there was no contract between the applicant and the decree holder and their relationship was only one through property, the applicant cannot be regarded as a person who is liable to pay the mortgage debt to the mortgagee decree holder. In the view of the learned Subordinate Judge there should exist a personal liability on the part of the applicant if he is to be regarded as a "debtor" for the purpose of Act 30 of 1975. The correctness of this view is called in question by the appellant in this appeal.

(2.) The expression "debtor" has been defined in S.2(5) of the Act as follows:

(3.) The learned Advocate appearing for the respondent relied strongly on an unreported decision of a Division Bench of this Court in E.F.A. No. 54 of 1976 as lending support to his contention that the appellant herein who has purchased the equity of redemption under the mortgage during the pendency of the proceedings in the mortgage suit cannot be regarded as a "debtor". We have carefully gone through the judgment of the Division Bench and we find that the dictum laid down therein is only to the effect that a person who had entered into a voluntary transaction of purchase of a property attached in execution of a simple money decree cannot be said to get the status of a 'debtor' in relation to the decree debt. It was so held because the purchase effected during the subsistence of the attachment was hit by S.64 of the Civil Procedure Code and would not hold good against the decree holder and secondly the decree that was under execution was only a simple money decree and the mere producing of an item of property under attachment did not create a nexus as between the purchaser and the decree debtor since the property was not charged with the liability of satisfying the decree The question canvassed before the Division Bench was whether the purchaser being an assignee from the judgment debtor was not entitled to be regarded as a "debtor" and it was rightly answered by the Division Bench in the negative. We are not concerned with any such question in the present case. Here, the appellant before us acquired the equity of redemption in respect of the mortgaged property by purchase in court auction sale and by virtue thereof he has now become the owner of the properties which are sought to be sold in execution of the mortgage decree. The liability under the decree being charged on the properties belonging to the appellant, the case before us is directly governed by the principles laid down in the two earlier Division Bench rulings reported in Rahina Beevi v. Liquidator (1957 KLT 809) and Varghese v. Palai Central Bank Ltd. (1959 KLT 955).