MADHAVAN KANIYAN Vs. ISAHAK
LAWS(KER)-1963-12-12
HIGH COURT OF KERALA
Decided on December 16,1963

MADHAVAN KANIYAN Appellant
VERSUS
ISAHAK Respondents


Referred Judgements :-

VARIATHU V. AYYAPPAN [REFERRED TO]
VARIATHU V. AYYAPPAN [REFERRED TO]


JUDGEMENT

- (1.)THE point arising for decision in this case is covered by an authority Of this court in Variathu v. Ayyappan (1961 KLJ. 1018 ). THE question is whether there is any expression of an intention in Act XXXI of 1958 to exclude the operation of sub-sections (c) and (e) of S. 4 of the interpretation and General Clause Act, 1125.
(2.)THE appellant had obtained an order, for paying the debt due from him to the respondent under a decree, in accordance with the provisions of Act III of 1956. THE definition of the term'debt' under Act III of 1956 included balance of sale consideration. Act III of 1956 was repealed by act XXXI of 1958 and in the latter enactment debt has been defined as any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of that Act, whether payable under a contract or under a decree or order of any Court, or otherwise, and includes any debt or balance of debt due at the commencement of Act XXXI of 1958 under the Madras Indebted Agriculturists (Re-payment of Debts) Act, 1955, or the Travancore-Cochin Indebted Agriculturists Relief Act, 1956, but excluded the balance of sale consideration.
Raman Nayar, J, considered the effect of the above definition and the provisions of Act XXXI of 1958 in the ruling referred to above and came to the conclusion that he has not been able to discern anything in the provisions of that Act from which it is possible to spell out an intention to negative the effect of sub-sections (c) and (e) of S. 4 of the interpretation and General Clauses Act. Counsel for the respondents, however, contends that the conclusion of the learned judge in the above case would have been different if the two decisions of the Supreme Court reported in State of Punjab v. Mohar singh Pratab Singh (AIR. 1955 SC. 84) and Indira Sohanlal v. Custodian of evacuee, Property, Delhi (AIR. 1956 SC. 77) were brought to the notice of the court. I do not find anything said in these cases against the proposition laid down by the learned judge of this Court in Variathu v. Ayyappan (1961 klj. 1016 ).

The Supreme Court has laid down that the incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material.

(3.)COUNSEL for the respondents urged that the learned judge in Variathu v. Ayyappan (1961 KLJ. 1018) has observed that in the section in Act XXXI of 1958 which repealed Act III of 1956, there is nothing said which would negative the operation of sub-sections (c) and (e) S. 4 of the interpretation and General Clauses Act and that this approach is unwarranted in view of the observations of the Supreme Court. No doubt, the learned judge has stated that a contrary intention would normally be expressed in the repealing section. But the decision, as I understand it, has not been exclusively rested on this approach. The only provision brought to the notice of the learned judge is the provision regarding the definition of the term 'debt' and this has been fully considered and the learned judge has not been able to discern or spell out from that provision an intention to negative the effect of sub-sections (c)and (e) of S. 4 of the Interpretation and General Clauses Act. I am unable to gather any such intention from the definition either. No other provision of the statute has been brought to my notice by counsel for the respondents. I therefore respectfully follow the decision in Variathu v. Ayyappan (1961 klj. 1018) and set aside the orders of the courts below and allow this appeal with costs throughout.
The question whether the appellant's right is still alive and whether he has committed any default or whether he has forfeited his rights will of course be considered by execution court. Allowed.

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