STATE BANK OF INDIA Vs. KUTTAPPAN

JUDGEMENT

(1.) S.A. No. 164 of 1997 is by the first defendant and S.A. 444 of 1997 is by the fifth defendant in O.S. 408 of 1987 on the file of the Subordinate Judge's Court of Irinjalakuda. The suit was filed by the first respondent in these Second Appeals as the plaintiff, for a declaration that the proceedings initiated against him for recovery of amounts due to the first defendant, a Nationalised bank, under the Kerala Revenue Recovery Act was illegal and invalid and to declare the title of the plaintiff over me plaint schedule property ignoring the sale conducted pursuant to the initiation of such proceedings and for recovery of possession of the property sold. There was also a prayer for the grant of a perpetual injunction restraining the fifth defendant, the purchaser at the revenue sale, from effecting any improvement in the property, Overruling the defences offered by the defendants, the Trial Court decreed the suit. The first defendant filed an appeal. That appeal was also dismissed. That dismissal is challenged by the first defendant in its second Appeal. The fifth defendant who had not filed an appeal before the lower appellate court challenging the decree of the Trial Court, has chosen to file S.A. 444 of 1997 challenging the decision of the lower appellate Court. The question of the maintainability of the Second Appeal by the fifth defendant, he not having filed a first appeal before the lower appellate court, does not loom large in this case, since if the Second Appeal filed by the first defendant were to be allowed, the result would obviously benefit the fifth defendant as well;

(2.) The plaintiff had taken a loan from the first defendant Bank. He had not repaid it. The Bank therefore, filed O.S. 302 of 1980 for recovery of the money. That suit was decreed. The Bank filed an Execution Petition. According to the plaintiff, on receipt of notice under O.21 R.66 of the Code of Civil Procedure, he paid in the executing court, paltry amounts on various occasions totalling Rs. 900/-. Presumably finding that recovery through the executing court was proving to be time consuming, the first defendant Bank, sought the initiation of proceedings under the Revenue Recovery Act. As per S.R.O. No. 797 of 1979, the Government, in exercise of its power under S.71 of the Kerala Revenue Recovery Act declared that the provisions of the Revenue Recovery Act shall be applicable to recovery of amounts due from any person to any Bank on account of any loan advanced to such person by that Bank for agriculture or agricultural purposes. The first defendant, the State Bank of India, is specifically brought within me Notification. The amount was an agricultural loan. On the first defendant getting the proceeding for recovery under the Kerala Revenue Recovery Act initiated, the plaintiff filed O.S. 354 of 1986 on the file of the Munsiff's Court, Irinjalakuda for a permanent injunction restraining the defendants therein from initiating or continuing the proceedings under the Kerala Revenue Recovery Act That suit was subsequently dismissed as withdrawn. It appears that the Government stayed the proceedings under the Revenue Recovery Act, but that stay was subsequently vacated. An extent of 2.20 acres belonging to the plaintiff was attached in terms of the Revenue Recovery Act. The sale originally proposed did not take place. The proposal for sale was again published and at the resultant sale, 30 cents out of the 2.20 acres attached, was sold for a sum of Rs. 10,400/-. The fifth respondent was the purchaser at the auction. The plaintiff filed an appeal before the Collector. That appeal was dismissed. A Revision filed before the Board of Revenue by the plaintiff was also dismissed on 3.7.1987. Meanwhile, the sale having been confirmed, the 30 cents of property was delivered over to the fifth defendant.

(3.) On 17.11.1987, the plaintiff filed the present suit after the issuance of notice under S.80 of the Code of Civil Procedure. S.81 of the Revenue Recovery Act enables a person deeming himself aggrieved by any decision or order passed or proceeding taken under the Revenue Recovery Act to file a suit before the civil court within 90 days of the accruing of the cause of action. It is further provided that the time taken by a plaintiff for pursuing the statutory remedy of revision before the Board of Revenue would stand excluded in computing the period of limitation. S.72 of the Act provides that any question relating to the execution, discharge or satisfaction of a written demand issued under the Act or relating to the confirmation or setting aside of a sale under the Act, shall be determined not by a suit but by the order of the Board of Revenue or the Collector as the case may be. To this bar of jurisdiction, a saving is made when the ground alleged in the suit is one of fraud. In the present case, the plaintiff had exhausted the remedies available to him under the Revenue Recovery Act and had filed the suit on his plea that the proceedings could not have been initiated against him on the grounds set out by him in the plaint including one of fraud. It is therefore clear that the present suit is governed by S.81 of the Act and is maintainable, even though it has now been found that there was no fraud established by the plaintiff as required by S.72 of the Act. It has therefore, to be taken that the present suit by the plaintiff is maintainable. There was no plea before me that the suit was not within time. It has therefore also to be taken that the suit was filed within time, by the plaintiff.