ABRAHAM JOSEPH Vs. GOPINATHAN
LAWS(KER)-1974-4-13
HIGH COURT OF KERALA
Decided on April 09,1974

ABRAHAM JOSEPH Appellant
VERSUS
GOPINATHAN Respondents

JUDGEMENT

V.BALAKRISHNA ERADI,J. - (1.) THESE civil revision petitions have been preferred against a common order dated 9th February,1972 passed by the Subordinate Judge of Irinjalakuda allowing E.A.Nos.324 and 325 of 1971 filed by the 2nd defendant in O.S.No.3 of 1955 who is the 1st respondent in these civil revision petitions to condone the delay in making the deposits under section 20(2)of the Kerala Agriculturists Debt Relief Act,1970(Act 11of 1970 ).Viswanatha Iyer,J.before whom these civil revision petitions originally came up for hearing has referred these cases to a Division Bench since the learned Judge was of the view that a Division Bench ruling of this High Court reported in Ittan v. Subra­mania Iyer 1965 K.L.T.1138 requires reconsideration.
(2.) IN execution of the decree passed in O.S.No.3 of 1955 different items of properties belonging to the 2nd defendant therein were brought to sale on 3rd December 1957 and 1st November 1968.The revision petitioners before us are transferees from the decree -holder purchaser.On 13th January 1971 the 2nd defendant filed E.A.Nos.15 and 16 of 1971 under section 20(2)of Act 11 of 1970 seeking to set aside the two court sales but he did not make the deposit of one -half of the purchase -money together with the costs of execution either at the time of making the said application or prior thereto.The said deposit was made by the 2nd defendant only on 16th January 1971.The period of six months from the date of commencement of the Act before the expiry of which applications under section 20(2)had to be made had come to a close on 14th January 1971 and hence the 2nd defendant filed the appli­cations for condonation of the delay in making the deposits.The revision petitioners herein contended before the court below that since section 5 of the Limitation Act provides for only the admission of appeals and applications after the prescribed period of limitation the court has no power under the said section to condone the delay in making the deposit prescribed by section 20(2)of the Act as a condition to be complied with by a person seeking relief under the said section.The lower court rejected the said contention in view of the ruling reported in Ittan v.Subramania Iyer 1965 K.L.T.1138,wherein it was held that the power to grant extension of time in respect of the filing of an application under section 22(1)of Act 31 of 1958 must involve as a necessary corollary the power to extend the time for making the deposit.It is the correctness of the said ruling that is called in question by the revision petitioners. Section 20(2)of Act 11 of 1970 reads: "Where any immovable property in which an agriculturist had an interest has been sold in execution of a decree for arrears of rent or michavaram " (a)during the period commencing on the 1st day of November 1956 and ending with the 30th day of January 1961 and the possession of the said property has actually passed on or before the 1st day of April 1964,from the judgment -debtor to the purchaser,or (b)before the 1st day of November 1956,and the possession of the said property has actually passed during the period com­mencing on the 20th day of November 1957 and ending with,the 1st day of April 1964,from the judgment -debtor to the purchaser,then,notwithstanding anything contained in the Limitation Act,1963 or in the Code of Civil Procedure,1908,and notwithstanding that the sale has been confirmed,such judgment -debtor or the legal representative of such judgment -debtor may deposit one -half of the purchase money together with the costs of execution,where such costs were not included in the purchase money and apply to the court within six months from the date of the commencement of this Act to set aside the sale of the property,and the court shall,if satisfied that the applicant is an agriculturist,order the sale to be set aside,and the court shall further order that the balance of the purchase money shall be paid in ten equal half -yearly instalments together with the interest accrued due on such balance outstanding till the date of payment of each instalment,at six per cent per annum,the first instalment being payable within a period of six months from the date of the order of the court." The provision contained in section 22(1)of Act 31 of 1958 was substantially on the same terms,except for the slight difference that the period prescribed under that section within which an application could be made to the court was one year whereas in the present enactment it is only six months from the date of commencement of the Act.The scope of section 22(1)of Act 31 of 1958 was consi­dered by a Division Bench of this court in Ittan v.Subramania Iyer 1965 K.L.T.1138 and it was held that even though going strictly by the language of the section the prescription of the time of one year applied only to the filing of the applica­tion before the court and not to the deposit of the amount,the deposit is so closely related to the application as to form an integral part thereof and hence the power to grant an extension of time in respect of the filing of an application must involve as a necessary corollary the power to extend the time for making the deposit.It was strongly urged before us by the learned advocate appearing for the revision petitioners that going by the language of section 5 of the Limitation Act the court can only extend the period prescribed for preferring an appeal or application and that no power is conferred by the said section to enlarge the time for the performance of any act such as the making of a deposit of a sum of money as required by section 20(2)of Act 11 of 1970.It was argued that the scope of section 5 will not get altered or enlarged merely because the deposit is required by the concerned statute to be made either prior to or along with an application and that hence the decision in Ittan v.Subramania Iyer 1965 K.L.T.1138 requires reconsideration.We are unable to accept this contention.In cases where the requisite deposit prescribed under section 20(2 )(b)has not been made either prior to or on the date of filing of the application under the said section but is made only on a subsequent date,the application for relief under section 20 can be deemed to have been properly filed only on the date on which the amount is deposited.When a motion is made to the court for condonation of the delay in such a case the prayer is really one for extending the period of limitation for making the application and not for condonation of the delay in making the deposit.It cannot be doubted that the court has ample power under section 5 of the Limitation Act to grant the said relief in case the applicant is able to satisfy the court that he had sufficient cause for not preferring the application within the prescribed period.
(3.) A somewhat similar question arose before this court under section 14 of the General Salestax Act,1125,and rule 29 of the General Salestax Rules,1950,in Gangadharan Pillai v. Salestax Officer (Reserve ),Ernakulam 1965 K.L.T.238.Under sec­tion 14 of the General Salestax Act,1125 an assessee objecting to an assessment made on him under section 12(2)of the said Act was given a right to file an appeal to a prescribed authority within 30 days from the date on which he was served with the notice of assessment.The second proviso to that section laid down that no appeal should be entertained under the said section unless it was accompanied by satisfactory proof of payment of the admitted tax by the appellant.The appellate authority was,however,empowered by the first proviso to the section to admit an appeal preferred after the period of 30 days aforesaid if the authority is satisfied that the assessee had sufficient cause for not preferring the appeal within that period.Rule 29 of the General Salestax Rules,1950 also laid down that the memorandum of appeal should be accompanied by proof of payment of the admitted tax by the appellant.In the case that came up to this court the assessee had not paid the admitted tax within 30 days of the service of the assessment order.The appeal petition was,however,presented by him before the appellate authority within the said period of 30 days.The admitted tax was remitted subsequently and the question arose whether in such a case the power con­ferred on the appellate authority under the first proviso to section 14(1)to admit an appeal preferred after the prescribed period could be invoked.The appellate authority took the view that the said provision was not attracted to such a case and rejected the appeal.This court(one of us)held that the correct approach is to treat the appeal as having been preferred on the date on which proof of pay­ment of admitted tax was furnished and then to see whether sufficient cause had been made out by the appellant for not preferring the appeal in time.This decision was cited with approval by the Supreme Court in M/s Lalta Prasad Khinni Lal v.Assistant Commissioner (Judicial)Salestax,Kanpur Range I,Kanpur and another A.I.R.1972 S.C.401.In that case the Supreme Court had occasion to consider a similar question arising under sec­tion 9(6)of the U.P.Salestax Act,1948(15 of 1948 ).The following observations of Grover,J.may be usefully extracted:" "We are wholly unable to comprehend and appreciate the above reasoning or the conclusion of the Allahabad High Court on the point under consideration.It is true that an appeal filed under section 9 of the Act cannot be entertained by the appellate authority unless satisfactory proof is adduced of the payment of tax admitted by the appellant to be due but in a case where the amount of admitted tax is deposited after the period of limitation has expired all that will happen is that the appeal will become entertainable only on the day on which satisfactory proof of payment of that amount is produced.In other words the appeal will be deemed to have been properly filed on the date on which the amount of admitted tax is paid.If that is beyond the period of 30 days the appeal will be barred by time.Section 9(6)will immediately become applicable to that appeal and it will be open to the appellant to apply for condonation of delay under that provision.We are wholly unable to follow the argument that the deposit of the amount of admitted tax must be made within 30 days even though the delay in filing the appeal can be condoned under sub -section(6 ).A proper and correct reading of section 9 cannot justify such an approach.If a petition of appeal has been filed without proof of payment of tax accompanying it that appeal can be said to have been preferred only when proof of payment of tax is furnished.Such furnishing of the proof may take place within the period prescribed for preferring the appeal or after the lapse of that period.If the proof of payment of admitted tax is furnished within the period prescribed the appeal must be entertained.If the furnishing of that proof is done after the expiry of the period of limitation the question will arise whether the appeal should be entertained or not.In such cases section 9(6)will come into operation and the question will arise whether there has been sufficient cause for not preferring the appeal within the statutory period.The correct approach is to treat the appeal as having been preferred on the date on which proof of payment of the tax was furnished and then to see whether under sub­section(6)of section 9,there was sufficient cause for excusing the delay in preferring the appeal.The decision of the Kerala High Court in Gangadharan Pillai v.Salestax Officer [Reserve ),Ernakulam [(1965)16 S.T.C.578 Ker.],is to this effect and we entirely agree with the reasoning and the conclusion therein ¦ ;.In the present case when the assessee produced the necessary documents which showed that the deposit of the full amount had been made by May 27,1966 the appeal became entertainable.It only suffered from the defect that it was barred by time on that date.The assessee could,therefore apply under section 9(6)for extending the period of limitation in accordance with section 5 of the Limitation Act.It is entirely a different matter whether on the facts of the present case the appellate authority would have condoned the delay or not but to say that the appellate authority had no jurisdiction to extend the time simply because the amount of admitted tax had been deposited beyond the period of 30 days would be wholly erroneous and would not represent a true and correct view of the provisions of section 9.It may be pointed out that the case of 21 S.T.C.154=A.I.R.1968 S.C.488,on which the High Court largely relied did not involve the question of the extension of the period of limitation under section 9(6 ).Indeed in our judgment the word 'entertain 'in section 9(1)has hardly any material bearing on the point under consideration." The above pronouncement of the Supreme Court has placed the matter beyond all doubt and in the light thereof we see no merit at all in the attack levelled by the petitioners against the correctness of the decision reported in Ittan v.Subramania Iyer 1965 K.L.T.1138.We are in respectful agreement with the principles laid down in the said decision.;


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