PARAMESWARAN PILLAI Vs. MUHAMMED ABBAS RAWTHER
HIGH COURT OF KERALA
MUHAMMED ABBAS RAWTHER
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(1.) The court below, on a preliminary issue as to whether the suit was barred by limitation held that it was not. The defendant has filed this revision against the finding on the preliminary issue.
(2.) The suit was for recovery of the amounts of paid up subscriptions in a chitty of which the defendant was the subscriber. The chitty was terminated on 30th September 1967. It is common ground that ordinarily and normally the suit would have to be instituted on or before 30th September 1970. But it was actually filed only on 8th February 1972. The plaintiff sought to escape the bar of limitation by contending that the defendant was an agriculturist entitled to the benefits of the Kerala Act 11 of 1970 and in view of the provisions in this Act, barring institutions of suits, against agriculturists, the limitation was saved in the instant case. The Trial Court found the preliminary issue as already noted, in favour of the plaintiff. The relevant provisions in the Act to notice in this connection are, S.3, sub-s.(1) and (2), S.4, S.10, Clause (3) and S.19(1). S.4 allows the benefit of instalment payment of debts due by agriculturists. It is unnecessary to notice that section. The remaining Sections namely S.3(1) & (2), S.10(1) and (3) and S.19 may be set out in full:
"3. Bar of suits and applications-- (1) No suit for recovery of a debt shall be instituted and 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; and all such suits and applications instituted or made against any agriculturist before such commencement and pending at such commencement shall stand stayed for the said period of six months.
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(2) Where a creditor institutes a suit for the recovery of a debt after the agriculturist has paid or deposited the sums and instalments specified in S.4, and during the period, when he is so entitled to pay, the court shall in decreeing the suit direct the plaintiff to bear his own costs and to pay the costs of the defendant who is an agriculturist, except in cases where the suit would have been barred by limitation had no such suit been instituted or where a debt is jointly due from an agriculturist and a non agriculturist.
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10. Decrees and orders against debtor-- (1) Where in respect of a decree for debt passed before the commencement of this Act, a debtor fails to make any one of the payment specified in sub-s.(2) and (3) of S.4 or in the order on the application made under S.7, the decree holder shall be entitled to execute the decree in respect of the instalment which is in arrear.
(2) x x x x
(3) In any suit filed after the expiry of six months from the commencement of this Act for the recovery of a debt due from an agriculturist, the court in decreeing the suit shall provide for the immediate payment of such instalment or instalments, as would have become due under the provisions of sub-s.(2) and (3) of S.4 and for the payment of the balance in further instalments as specified in the said sub-sections.
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S. 19. Limitation -- (1). In computing the period of limitation for a suit for recovery of a debt or an application for the execution of a decree in respect of a debt, the time during which the institution of a suit or the making of the application was barred under S.3 shall be excluded.
(2) Where a debt is payable by an agriculturist either by himself or jointly with a non agriculturist and where the agriculturist makes payment or deposits any amount towards that debt as provided for in S.4 or S.7 or S.11 or S.14. a fresh period of limitation shall be computed from the time when the payment or deposit was made both against the agriculturist and the non agriculturist".
(3.) On the wording of the Sections, it seems to us that S.3 prohibits the institution of a suit only for a period of six months from the commencement of the Act. Sub-s.(2) and (3) itself in the latter part of it seems to us to recognise that suits which if not instituted, would have been barred by limitation, could well be tiled even against agriculturists, and sub-s.(3) of S.10 affords another indication that suits may well be filed after the expiry of six months from the commencement of the Act. Despite the fact that in such suits a decree should be passed only for the immediate payment of such instalment or instalments as would have become due under the provisions of S.4, and for payment of the balance in further instalments as specified in the sub-sections.;
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