M S KRISHNA IYENGAR Vs. KRISHNA AND CO

JUDGEMENT

(1.) THIS appeal is filed by the fourth defendant in O. S. No. 3 of 1973 on the file of the Subordinate Judge, Tuticorin, against the order passed in E. P. No. 170 of 1974 in the said suit. The plaintiff therein file the suit for recovery of money due on mortgage dated 21-12-1960 for Rs. 10,000, executed by one Srinivasa iyengar and the appellant herein in favour of the plaintiff. On 23-2-1974, a preliminary decree was passed and also passed. The decree-holder filed E. P. 170 f 1974 for sale of the hypotheca. The sale was posted to 3-9-1975. At this stage, the petition out of which this appeal arises was filed by the appellant for stay of execution proceedings under Tamil Nadu Ordinance 8 of 1975, which has now become the Tamil Nadu Indebted Person (Temporary Relief) Act, Act xlviii of 1975.

(2.) THE question that arises for consideration in this appeal is whether the appellant is entitled to an order of stay of execution proceedings by virtue of ordinance 8 of 1975 which has now been enacted as Act XLVIII of 1975.

(3.) ACCORDING to the definition of 'indebted person', both under the Ordinance as well as the Act, it is provided, that a person shall not be deemed to be an indebted person if he has in all the four half years immediately preceding the 1st April 1975 been assessed to property or house tax in respect of buildings or lands provided that that aggregate annual rental value of such buildings and lands whether let out or in the occupation of the owner, is not less than two thousand an four hundred rupees. When a person claims to be a debtor, it is open to the creditor to prove that he is not entitled to the benefits of the Act as he falls within the proviso (iii) to Section 2 (2) of the Ordinance which corresponds to proviso (iii) to Section 2 (2) of the Act. In order to establish that the debtor is not entitled to the benefit of an order of stay as provided under the Ordinance and the Act, a creditor will, have to prove: (1) that in all the four half years immediately preceding the 1st April 1975, he has been assessed to property or house tax in respect of buildings or lands; and (2) that the aggregate annual rental value of such buildings or lands whether let out or in the occupation of the owner is not less than two thousand and four hundred rupees. It is admitted that the first condition, namely, that the appellant has been assessed to property or house tax in all the four half years immediately preceding the 1st April 1975, has been satisfied. The only contention that is raised is that there was a partition suit in which the decreeholder himself was a party, wherein a preliminary decree was passed on 27-7-171. It is also stated that a final decree was passed on 28-3-1972.