AHAMMADKUTTY Vs. C K SUBRAMENIA IYER

JUDGEMENT

(1.) This civil miscellaneous appeal arises from an order dismissing a petition for scaling down the debt covered by the decree in O.S. No. 27 of 1936 of the court of the subordinate Judge, Kozhikode.

(2.) The facts necessary for the decision of the case may be briefly stated: The decree in O. S. No. 27 of 1936 was for recovery of money under a deed mortgage (Ext. A-1) executed on 2-6-1923 by the paternal grandfather of the appellant in favour of one Gayathri Ayyar, manager of a joint Hindu family. The mortgage was for the sum of Rs. 8379 - 8-0. and this sum represented the balance due under an earlier mortgage dated 7th June, 1910. executed by the same person in favour of Gayathri Ayyars predecessor Subramonian Pattar. Before the final decree in O.S. No. 27 of 1936 was passed a petition O.P. No. 72 of 1939 was filed by one of the debtors under S.19 of the Madras Agriculturists Relief Act, 1938, for scaling down the debt. This was allowed on 10-1-1940 and a final decree was passed for the reduced amount When the properties came up for sale in execution the appellant filed O. P. No. 61 of 1953 on 9-12-1953 for further scaling down of the debt under the provisions of the Act as amended by Acts XXIII of 1948 and XXIV of 1950. According to the appellant the whole decree was to be deemed discharged by the payments made after the execution of the first deed of mortgage of 1910 and the prayer was for a declaration to that effect. This prayer was based on the following averments:- The original principal sum under the deed of 1910 was Rs. 2,977-7-6. The deed or renewal, Ext. A-l, refers to a payment of Rs. 500/- towards the principal sum of Rs. 2,977-7-6 so that the balance due as principal was only Rs. 2,477-7-6. The subsequent payments amount to Rs 4975/-, i. e., more than twice the amount of the principal. In view of such payments the debt has to be deemed discharged under S.8(2) of the Madras Agriculturists Relief Act. The petition was opposed by the decree holder and was dismissed. This appeal has been preferred from the order dismissing the same.

(3.) Learned counsel for the decree holder respondent raised a preliminary objection based on the Kerala Agriculturists Debt Relief Act, XXXI of 1958. The properties charged under the decree have been purchased in execution by the decree holder on 26-11-1955. According to the respondent the parties are now governed by the Kerala Agriculturists Debt Relief Act, S.22 of which provides for setting aside sales of immovable property held on or after 1st November, 1956, or before 1st November, 1956 provided possession of property has not actually passed before 20th November, 1957. Possession has not passed to the decree holder auction purchaser in this case. Under S.22, one-half of the purchase-money together with costs of execution must be deposited within six months of the commencement of the Act and the balance together with interest at 5 percent per annum in ten equal half-yearly instalments. The Madras Agriculturists Relief Act, 1938, has been repealed by S.26 of the Kerala Agriculturists Debt Relief Act, and it is contended that the provisions of S.22 of Act XXXI of 1958 (Kerala) not having been complied with, the appellant is not entitled to any relief.