ALIKHAN BADUNA BEGOM Vs. SATHYANATHAN MOSES
HIGH COURT OF KERALA
ALIKHAN BADUNA BEGOM
Click here to view full judgement.
(1.) THE second defendant is the revision petitioner and the revision arises out of an application filed by him under Section 22 of Act 31 of 1958 to set aside the court sale. Though the decree was passed by the munsiff's Court of Trivandrum it was sent for execution to the Nedumangad munsiff's Court within whose jurisdiction the property sold in court auction are situate. On 10-11-55 four items of immovable properties were sold in court auction and purchased by the respondent who is a stranger to the decree. THE court sale was confirmed on 9-12-1955. THE respondent assigned one of the items to the judgment debtor on 28-12-1955 and he got delivery of the remaining three items on 9-12-1958. THE revision petitioner who is the legal respresentative of the judgment debtor filed the petition to set a aside the court sale after depositing the amount as required by Section 22 of Act 31 of 1958.
(2.) THE application to set aside the sale under Section 22 of Act 31 of 1958 was filed in the Munsiff's Court of Trivandrum. THE learned munsiff allowed the application. On appeal by the respondent the learned additional District Judge dismissed the petition on two grounds. THE first ground is that the application filed in the Trivandrum Munsiff's Court is not maintainable as it should have been filed in the Nedumangad Munsiff's Court where the court sale was held and the second ground is that the decree being one for recovery of arrears of rent the revision petitioner is not entitled tothe benefit of Section 22 of Act 31 of 1958. In our view, both these grounds cannot stand. THEre is no indication in Section 22 of Act 31 of 1958 that the application to set aside the sale has to be filed only in the court in which the sale took place. S. 2 (b) of Act 31 of 1958 defines "court" as meaning "any civil court having jurisdiction to entertain a suit for the recovery of discharge of a debt" In the absence of any other provision in act 31 of 1958 which enjoins the filing of the application in the court conducting the sale the definition of "court" will have to prevail and under the definition clause the application filed in the Munsiff's Court of trivandrum which had the jurisdiction to entertain the suit for the recovery of the amount is maintainable. THE second ground cannot hold good in view of Act 2 of 1961 amended Act 31 of 1958. By virtue of the amendment introduced by Act 2 of 1961 sale in execution of a decree for the realisation of rent or michavaram can be set aside by an application under Section 22 of Act 1958 subject to the conditions mentioned therein.
The learned counsel for the respondent further contended that the legal representative of a judgment debtor cannot file an application under Section 22 of Act 31 of 1958. According to the learned counsel the expression "judgment debtor" in Section 22 of Act 31 of 1958 will not include his legal representative and therefore he is not competent to maintain an application under Section 22 of the Act. This point is concluded against the respondent by the decision of this Court in Ittan v. Subramania iyer (1965 KLT 1138) wherein it was held that "going by the provisions of the Act (Act 31 of 1958) alone, there is sufficient indication that expression 'judgment debtor' includes legal representatives and assigns". With great respect we follow the decision and hold that the application by the revision petitioner is maintainable.
A further ground was raised by the learned counsel for the respondent that the revision petitioner is not an agriculturist as defined in Act 31 of 1958 and is therefore not competent to maintain the petition under section 22 of the Act. This question was not considered by the learned appellate Judge though the point was raised in the appeal memorandum. The learned Munsiff disposed of this contention saying that "the statute of an agriculturist claimed by the petitioner has not been seriously disputed by the auction purchaser". The statement made by the Munsiff does not indicate that the respondent gave up the contention raised by him in his objection that the revision petitioner is not an agriculturist. A finding is therefore necessary on the question whether the revision petitioner is an agriculturist as defined in the Act. We therefore set aside the order of the learned additional District Judge and hold that the application filed under Section 22 of Act 31 of 1958 in the Trivandrum Court is maintainable and that the revision petitioner though the legal representative of the Judgment debtor is competent to maintain the application. We send back the petition to the trial court for deciding the question whether the revision petitioner is an agriculturist as defined in Act 31 of 1958. If the trial court finds that the revision petitioner is an agriculturist it will allow the application filed under section 22; otherwise the application will be dismissed. The revision petition is allowed in the manner indicated above, but we make no order as to costs.;
Copyright © Regent Computronics Pvt.Ltd.