IYPE VARKEY Vs. CATHOLIC UNION VANK LTD

JUDGEMENT

(1.) THE judgment-debtor in 0. S. No. 10/1954 on the file of the Additional District Judge's Court of Parur is the appellant. That suit was decreed against him and in execution of the decree, items 1 and 3 of decree schedule wore sold in court auction on 13 61958 and were purchased by the decree-holder bank. On 14 7 1958 the judgment-debtor put in a petition to have the sale set aside on grounds of material irregularity and fraud in the conduct of the sale. His attempt in that direction proved unsuccessful. However, before the court sale was confirmed, the Kerala Agriculturists' Debt Relief Act, (Act xxxi of 1958) came into force. THE judgment-debtor wanted to take advantage of this Act and accordingly on 1411959 he filed a petition for relief under sub-section [3] of S. 22 of the Act. THE lower court held that the conditions required by S 22 were not satisfied in the present case and that, therefore, the judgment-debtor is not entitled to claim the benefits of Act XXXI of 1958. THE petition was accordingly dismissed. THE correctness of the view taken by the lower court is challenged in this appeal.

(2.) IT is not disputed that the judgment-debtor-appellant is an agriculturist as defined in Act XXXI of 1958. In order that he may be entitled to have the court sale set aside under sub-section (3) of S. 22 of the act and to get the right to pay the decree-debt in accordance with S. 4 and 5 of the Act, the other important conditions to be satisfied are, (1) that the court sale of his immovable properties involved in the suit has not been confirmed, (2) that a petition for setting aside the sale was pending at the commencement of the Act XXXI of 1958, and (3) that the judgment-debtor has deposited the first instalment contemplated by S. 4 within the prescribed period. As already pointed out, the court sale in the present case had not been confirmed at the commencement of the Act or even at the time of the filing of the petition by the judgment debtor under S. 22 of the Act. The dispute is about the next question whether a petition for setting aside the court sale was pending at the common cement of the Act. The lower court's answer to this question is against the judgment-debtor.