SUBRAMONIA NADAR Vs. PURUSHOTHAM RAMJEE AND CO

JUDGEMENT

(1.) The appeal is from an order of the Additional District Judge at Parur refusing to admit the judgment debtor in O.S. No. 22 of 1950 on the file of the erstwhile Parur District Court to the benefits of Act XXXI of 1958. The learned Judge bases his order on two grounds: (i) that in as much as the judgment debtor has no agricultural or horticultural land in Kerala, but only in Tamilnad he cannot get the benefits of the Kerala Act and (ii) that the court of the Additional District Judge at Parur had no jurisdiction to entertain the petition. As we are in full agreement with the learned Judge below on the second ground we do not seek to pronounce upon the first one though it is really an interesting question. On the second point what the learned Judge has stated may usefully be quoted here:

(2.) Before parting with the case we desire to point out that the respondent took two preliminary points before us, namely that this appeal was incompetent in as much as Act XXXI of 1958 does not provide for an appeal and secondly that the prayer made was only for a stay of execution and that such a prayer was not envisaged by the Act. The latter point is really a question pertaining to the merits of the application and that will be dealt with by the court in proper time by a proper court. We may however state that it is the substance that matters and not the form. Clear as anything the petitioner was invoking the benefits of Act XXXI of 1958 and we do not see any reason why notwithstanding the wording of the actual prayer the petition should not be dealt with as such if and when it is presented to the subordinate Judge at Parur. As for the question as to appealability we need only refer to the decision of the Privy Council in Adaikappa v. Chandrasekhara AIR 1948 Privy Council 12- and state that in view of that ruling the preliminary objection is without substance.

(3.) The appeal is in the result allowed in the above terms and the petition sent back to the lower court to be returned to the petitioner for presentation to the proper court. We make no order for costs here.