HIGH COURT OF KERALA
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(1.)No doubt as Act XXXI of 1958 actually stood on 3rd January 1961, when this second appeal against the concurrent dismissal of an application (which is really under S.8 and 12 of the Act although S.4, 5 and 6 were also cited) was brought, the appeal was competent, S.13 of the Act providing that an appeal lay from an order under S.12 as if such order were an order under S.47 of the Civil Procedure Code. But, by Act II of 1961, which, although it was actually enacted only on 30th January 1961, was given retrospective effect from the date of the commencement of the original Act, namely, from 14th July 1958, S.13 was repealed, and S.23 A providing for only one appeal and no more orders under S.8 and 12 among other sections, introduced. Therefore, the position is as if S.23A were always in the statute and S.13 never there See Narayani v. Govindan ( 1961 KLT 312 ) and Ramasubba Iyer v. Christudas ( 1963 KLT 886 . Hence I must now regard this second appeal as incompetent. And it would appear from Govindan Nambiar v. Soopi Kutty Haji ( 1963 KLT 975 ) that, even a revision under S.115 of the Code, will not lie.
(2.)The appellant prays for time to make an application for converting this second appeal into a petition under Art.227 of the Constitution. I see no point in granting the prayer since I do not think the appellant would get any relief in a petition under Art.227 of the Constitution. The decree under execution is a compromise decree under the terms whereof the appellant was to be the owner of a particular property on his paying a certain sum to certain persons on or before a 8'ertain date, namely, 19th March 1957 (not 30th August 1950 as wrongly stated in the orders of the courts below); else respondents 2 & 3 were entitled to obtain delivery of the property in execution of the decree. The decree did not require the appellant to pay the money; it only gave him the option of acquiring the property by paying the money within the time stipulated; the payees had no right to demand the money and could not have realised it in execution; and hence there is no question of the decree imposing any pecuniary liability so as to constitute a debt. The appellant's case is, however, that the condition, namely, payment on or before 19th March 1957, amounts to a debt within the meaning of the Act and that therefore by reason of Explanation.4 to S.3(1) of the Act, it has to be dealt with in accordance with the provisions of the Act. It will be noticed that, by the time the Act came into force, the appellant had already forfeited his right to get the property on payment of the stipulated sum so that it can scarcely be said that, for fulfilling the condition, he was to pay any money on the commencement of the Act. But the question still remains whether the condition imposed amounted to a liability incurred before the commencement of the Act in which case the liability would be a debt within the meaning of S.2(c) of the Act and its subsisting nature might not be essential for the purpose of attracting Explanation.4 to S.3(1). It is however not necessary to decide this question for the purpose of this case I am expressing no view one way or the other for, I do not read the explanation in question assaying that a condition of the kind mentioned therein is, in fact, a debt within the meaning of the Act to be dealt with in accordance with the provisions of the Act.
(3.)The material portion of S.3(1) runs as follows:
"3. Bar of applications.-- (1) No application for execution of a decree in respect of a debt shall be made against any agriculturist in any court before the expiry of six months from the commencement of this Act.
x x x x
Explanation IV.-- Where the decree passed is a conditional decree, and the conditions imposed come within the definition of debt, breach of the condition shall not be deemed to have taken place so long as the judgment debtor acts in accordance with the provisions of this Act." What the explanation (which seems to be an independent substantive provision and hardly an explanation in the true sense) says is that, where the condition comes within the definition of debt, breach of the condition shall not be deemed to have taken place so long as the judgment debtor acts in accordance with the provisions of the Act. It does not say that the condition in the decree is a debt to be dealt with in accordance with the provisions of the Act, and all that it enables a judgment debtor entitled to its benefits to do is to urge, at the time of the execution of the decree, that he has acted in accordance with the provisions of the Act and that consequently there is no breach of the condition, on the occurrence of which alone, the decree becomes executable.
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