SCARIA THOMAS Vs. NEELAKANTA IYER KRISHNA IYER

JUDGEMENT

(1.) THE mortgagor-debtor whose petition under S. 4,11 (6)and 12 of the Kerala Agriculturists' Debt Relief Act (Act 31 of 1958) is pending before the lower court has preferred this appeal against that court's order refusing to issue an order of injunction restraining execution of the decree obtained against him by the respondent mortgagee. THE transaction between the parties consist of a mortgage and lease back. On the basis of the lease, the mortgagee has obtained a decree for recovery of the property together with arrears - of pattern and future profits. In spite of this decree the mortgagor is still in posses ion of the property. While so Act 31 of 1958 came into force and he has applied for the benefits under the Act. THE main petition in that direction is still pending because the respondent has raised a contention that the mortgagor is not an agriculturist as defined in Act 31 of 1958. All the same the facts admitted are sufficient to make out a prima facie case in favour of the mortgagor-debtor. Clause. 6 of S. 11 of the Act states that where the property mortgaged has been leased back in favour of the mortgagor, the mortgage will be deemed to be a simple mortgage. THE mortgagor will be entitled to discharge the debt in accordance with the provisions of the Act, if he is an agriculturist. THE mere fact that there has been a decree on the strength of the lease cannot ipso facto take away this right. Clause (1) of S. 4 which confers the right to pay the debt in instalments states that this right will be available notwithstanding any law, contract or decree. THEse provisions are sufficient to make out a prima facie case in favour of the mortgagor petitioner.

(2.) THE lower court has disallowed the prayer for the issue of an injunction mainly on two grounds. THE first ground is that relevant provision of the C. P. C. can be invoked only in a suit and that an application under Act 31 of 1958 cannot be said to be a suit. From the scheme of the Act, it is clear, that the proceedings contemplated by the Act are original proceedings in the nature of a suit. It follows therefore that the provisions of the C. P. C. regarding the issue of an order of injunction can be invoked in respect of such original proceedings when there is the objection that there is no proper ground for the issue of an injunction. As already pointed out the effect of an application by an agriculturist debtor for permission to pay the debt in instalments, is to keep the decree against him in suspense. To attempt to enforce the decree and to recover possession from the debtor in such a situation will be an attempt to get wrongful delivery of possession of the property. Pending final orders on the debtor's main petition, it is only just and proper that his possession should be maintained in spite of the decree. A temporary injunction for that purpose will only be legal and proper.