BALAKRISHNAN NAIR Vs. V G BHASKARAN NAIR

JUDGEMENT

(1.) This revision is by a decree holder auction purchaser whose sale in execution has been set aside on an application made by the respondent judgment - debtor in the court below under S.22(3) of the Kerala Agriculturists Debt Relief Act, 31 of 1958 hereinafter called the Act.

(2.) The appellant had been conducting a single chitty scheme consisting of four classes of tickets A, B, C and D for various amounts and subject to differing conditions but all terminating uniformly on 15-3-1958. However by a special resolution passed on 10-3-1953, during the course of the Scheme the number of subscribers in the A class was reduced by ten so as to bring about a termination of that class earlier by 20 months. The respondent had taken three tickets respectively of the A, B & C classes, had bid his A and B class tickets and had the decree herein passed against him for defaulted chitty subscriptions under the A & B classes. The sale in execution of the decree had taken place before the Act came into force on 14-7-1958. The respondents application to set aside the court sale was however pending at date of the Act. Now S.22 of the Act provided for the setting aside of sales of immovable property in certain cases. One of such cases was dealt with under S.22 (3) as follows:

(3.) Learned counsel for the appellant questioned that there was at all a debt under the Act which led at least in part to the court sale here and said that the court sale could not in any event be effected because the debt did not entirely account for it Now there can be no doubt that the chitty scheme though registered as one did really consist of, four schemes, with separate sets of rights and liabilities governing the various classes of tickets A, B, C & D. The A class ticket holders formed one group and were entitled without regard to the rest to mould their rights and obligations and this they did by special resolution. If so there can be no point in looking to the termination as originally fixed for all the classes, for determining what in the final event, was the termination for the A class tickets. And this must apply in evaluating the nature of the debt covered by the respective classes from the point of view of the Act as well. There is also no substance in the argument that the court sale must stand unless the entire judgment debt in support thereof was covered by the Act. For if the sale could not be supported in part, it has necessarily to go in whole. Reference may be made in this connection to a parallel case under S.13 of the Travancore Debt Relief Acts II & III of 1116, Kuruvila v. Cheriyan, 1946 T LR 467. Part of the decree-debt there was outside the scope of the Act but still the execution sale held in execution of the decree was set aside. The learned Judges said:-