NARAYANI Vs. GOVINDAN

JUDGEMENT

(1.) I am by no means certain that this revision against the dismissal of an application brought by the two petitioners herein under s. 22 of Kerala Act 31 of 1958 should be countenanced in view of S 23-A of the Act which expressly provides for an appeal. No doubt this section was introduced by Act 2 of 1961 which was published only on 30-1-1961, and that on the day this petition was brought i. e. , on 11-1-1960, there was in actual existence no right of appeal. But then s. 1 (2) of Act 2/1961 makes that Act expressly retrospective and says that it shall be deemed to have come into force on 14-7-1958; and having regard to the scope of such a fiction as defined by the Supreme Court in A. I. R. 1953 S. C. 244, A. I. R. 1958 S. C. 875 and A. I. R. 1959 S. C. 352 citing with approval the well known observations of Lord Asquith in (1951) 2 All E. R. 587, I am not sure that I am not bound to deal with this matter on the basis that a right of appeal existed on 11-1-1960 when this petition was brought. That this Court exercised part of the power in S. 115 C. P. C. by ordering notice on 16 -1-1960 and thus calling for the records, and that that power was then rightly exercised does not mean that the further exercise of the power can ignore the fact that the position now is that there was a right of appeal on 11-1-1960. It seems to me that the proper remedy in such a case might well be an appeal now, with an application under S. 5 of the Limitation Act; and that the legislature had this in mind when it gave retrospective effect to the amending Act, Act 2/1961, is indicated by sub-section 2 added by this Act to the original S. 20 making S. 5 of the Limitation Act applicable to all applications and appeals filed under the act.

(2.) I shall however deal briefly with the merits of the matter especially since the appeal in this case does not lie to this Court and the words "no appeal lies thereto" in S. 115 C. P. C. do not therefore constitute an express bar. I think the Court below was right in dismissing the application though my reasons are not quite the same. S. 22 of Act 31/58 is not very happily worded but I think it fairly clear that, for that section to apply, the interest of an agriculturist must have been sold for the recovery of a debt and further that the application must be by an agriculturist judgment-debtor whose interest has been sold. I would add that a judgment-debtor entitled to make the application must be a person who on the sale being set aside would be entitled to get back the property - this much seems clear from sub-section 2. Here the first petitioner was not eo nomine a judgments-debtor but since, as a purchaser pendente lite , the mortgage decree was enforceable against the property in her hands, it might be said that she is a "person against whom a decree has been passed or an order capable of execution has been made" and therefore a judgment-debtor as that term is defined in S. 2 (10) of the C. P. C. This seems to be a legitimate extension of the principle laid down in A. I. R. 1939 Mad. 186, A. I. R. 1953 S. C. 370 and 1957 K. L. T. 209 (to mention only a few of the decisions cited at the bar) that where money is recoverable from property in the hands of a person there is a liability due from him although he might not be personally liable. But then the 1st petitioner has by Ext. P1 dated 29-5-1950 sold all her rights in the property to the 2nd petitioner and although it might be that those rights were them non-existent I do not think she would now be entitled to possession of the property if the sale is set aside. And, as for the 2nd petitioner, he had no interest in the property when the sale was effecte d. Therefore, in my view, neither is entitled to maintain this application.