BHASKARAN NAIR Vs. GAYATHRIKUTTY AMMA
LAWS(KER)-1974-7-7
HIGH COURT OF KERALA
Decided on July 11,1974

BHASKARAN NAIR Appellant
VERSUS
GAYATHRIKUTTY AMMA Respondents

JUDGEMENT

- (1.) In a suit for partition of the assets of a marumakkathayam tarwad, the plaintiff died pending suit, and the action was continued by his heirs at law, who got themselves impleaded as additional plaintiffs. A preliminary decree declaring the plaintiffs' share was followed by a final decree which inter alia permitted the plaintiffs to recover mesne profits from the defendants for a specified period anterior to the passing of the final decree. In execution of that decree, a property set apart to the defendants under the final decree was sold in court auction. In the meanwhile, the Kerala Agriculturists Debt Relief Act, 11 of 1970, (for brevity, 'the Act') came into force. The 4th defendant sought to avoid the sale on the strength of S.20 of the Act by filing an application on the execution side as E. A. No. 90 of 1971. The decree holders opposed the application, inter alia contending that the liability under the decree is not a debt within the meaning of the Act, and for that purpose they relied on S.2(4)(c) of the Act. While the executing court upheld the contention of the decree holders, the lower appellate court rejected it on the ground that the liability cannot get exempted under S.2(4)(c) of the Act.
(2.) The 2nd decree holder, who is the revision petitioner before me, reiterated the contention that the mesne profits decreed by the final decree is in the nature of a tortious liability and as such outside the purview of the definition of debt contained in the Act. Sub-s.(4) of S.2 of the Act which while defining the expression 'debt', enumerates certain liabilities which are not debts. Clause (c) of S.2(4), on which reliance is placed in this case, reads as follows: "(c) any liability arising out of a breach of trust or any tortious liability."
(3.) Inasmuch as the expression 'tortious liability' is not defined in the Act, its true import has to be ascertained with the assistance of the general law of torts.;


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