MADHOJI Vs. ABDUL KUNHI

JUDGEMENT

(1.) The revision petitioners are the respondents in E. P. No. 108 of 1974 in O.S. 26 of 1973 of the Sub Court, Kasaragod. E. P. No. 108 of 1974 was filed by the decree holder against the legal representatives of the judgment debtor for realisation of Rs. 10, 284 towards the decree debt. The legal representatives contended inter alia that the debt stood discharged under S.3 of the Kerala Debt Relief Act, 1977 (Act 17 of 1977), hereinafter to be referred to as the Act. The executing court held that being legal representatives they are not entitled to relief and also that since the quantum of the debt was more than Rs. 3,000/- they do not fall under the definition of 'debtor'. The further objections based on the correctness of the amount and the fixation of the upset price were also overruled.

(2.) Under S.3 of the Act every debt and interest thereon payable by a debtor to a creditor shall be deemed to be wholly discharged with effect on and from the commencement of the Act. The main question involved is whether the petitioners come under the definition of 'debtor' and whether the liability is a debt under the Act. The relevant portion of the definition of 'debt' under S.2 (3) reads:

(3.) The executing court placed reliance on the decision in Hariffa Beevi v. Madhavan ( 1977 KLT 158 ). In that case, while the suit was pending, the respondent plaintiff attached an item of property belonging to the defendant. Pending attachment the property was assigned to the respondent. When execution was sought the appellant applied for stay of proceedings under Kerala Debtors Temporary Relief Act, 1975 (Act 30 of 1975). S.3 of Act 30 of 1975 directed stay of execution of all decrees in respects of debts. The definition of debt was on all fours with the definition in the present Act. But there was a difference in the definition of debtor. A. debtor under Act 30 of 1975 barring the excluded category, meant any person, who had any interest, other than a simple mortgage, in any agricultural land in the State of Kerala. The application for stay was dismissed holding that an assignee of a property pending attachment was not a debtor. The decision was confirmed by a Division Bench of this Court. Sri. Rama Shenoi appearing on behalf of the revision petitioner would contend that the decision is against the ratio of the various rulings of this Court and of the Supreme Court and therefore it requires - reconsideration. The argument, as I understood him, is that a person who purchases property pending attachment has an interest in the land other than as a simple mortgagee and as such he should have been considered to be a debtor. The learned counsel placed reliance on the decision in Nageswaraswami v. Viswasundara ( AIR 1953 SC 370 ) which arose under the Madras Agriculturists' Relief Act (Act 4 of 1938). The Supreme Court observed:-