ABDUL KHADER Vs. VAIDYANATHAN

JUDGEMENT

(1.) This appeal is by the first defendant and is directed against an order passed in execution of the decree in O. S. 110 of 1960 on the file of the Sub Court, Kottayam. The 1st defendant filed E. A. 812 of 1967 for relief under Act 31 of 1958 on the ground that he is an agriculturist as defined therein. The claim was overruled by the learned Judge on two grounds. The first is that the debt under the decree will not attract Act 31 of 1958. The second ground is that on the date of Act 31 of 1958 the first defendant was not a citizen of India and therefore he is not entitled to claim the benefit of Act 31 of 1958.

(2.) At this stage it is necessary to state some facts. The first defendant as well as the plaintiff were both residents in Ceylon. On 1-9-1957 the first defendant and his wife who is the second defendant had executed a promissory note to the plaintiff for a sum of Rs. 13,765/-. A suit was instituted by the plaintiff against defendants 1 and 2 in the District Court of Colombo for recovery of the amount due on the promissory note and a consent decree dated 25-3-1959 was passed in favour of the plaintiff. The decree allowed the defendants to pay the decree amount in instalments provided they furnished security for the same. The condition was not complied with and the plaintiff was taking out execution against defendants 1 and 2 in the Colombo Court. The defendants in the meanwhile left Ceylon and came to Kottayam, O. S. 110 of 1960 was filed by the plaintiff in the Sub Court, Kottayam based on the judgment of the Colombo Court. The suit was decreed on 28-8-1961. The first defendant on the trial side did not seek any relief under Act 31 of 1958. It was only in execution that he claimed the relief which was disallowed by the order under appeal.

(3.) We agree with the lower court that the debt covered by the decree which is now executed is not payable under the provisions of Act 31 of 1958. The suit is to enforce a foreign judgment. A decree passed by the Ceylon court is not executable in any of the courts in this State under S.44A of the CPC. for want of reciprocal arrangements. The foreign judgment is dated 25-3-1959 and the liability created thereunder arose only after the date of Act 31 of 1958.