OUSEPH Vs. ORIENT UNION BANK LTD
LAWS(KER)-1967-7-32
HIGH COURT OF KERALA
Decided on July 27,1967

OUSEPH Appellant
VERSUS
ORIENT UNION BANK LTD. Respondents

JUDGEMENT

- (1.) In these two cases a common question of law arises for determination relating to the interpretation of S.2(c)(xi) of the Kerala Agriculturists Debt Relief Act, 31 of 1958 and they arise out of connected proceedings between substantially the same parties.
(2.) The petitioners in the Civil Revision Petition and the appellant in the Second Appeal had executed a usufructuary mortgage in respect of their properties to one Itty Iype Joseph in the year 1123 and on the same date the mortgagors took back the properties on lease on an yearly rent of Rs. 360/-. As the rent due under the lease back was kept in arrear, the mortgagee instituted O. S. 168 of 1950 in the Munsiff's Court, Ettumanoor for recovery of such arrears of rent. This suit ended in a compromise decree passed on 21-1-1954 and the compromise provided that the mortgage money as well as the arrears of rent should be paid to the mortgagee decree holder within a period of one year from its date. Thereafter, in June 1954 the mortgagee decree holder assigned his rights under the decree, inclusive of his rights in the mortgage, in favour of a banking company who is the respondent in the above Civil Revision Petition as well as in the Second Appeal. When the respondent Bank sought to execute the compromise decree, the judgment debtors raised the plea that they were entitled to relief under Act 31 of 1958 and that the decree was liable to be scaled down on the footing that the possession of mortgage and lease back together constituted a simple mortgage under S.11(6) of the Act. They also contended that, in any event, S.5(2) of the Act applied to the decree in question and that the decree holder was hence entitled to future interest only at 5 percent. In answer to these contentions the respondent Bank claimed that the debt in question was clearly covered by the exemption contained in S.2(c)(xi) of the Act and that therefore, it was not liable to be scaled down either under S.5 or under S.11 of the Act.
(3.) In the mean time, the debtors had also filed O. P. 43 of 1964 in the Munsiff's Court, Vaikom where the execution proceedings were pending, for scaling down the debt under S.5 and 11 of Act 31 of 1968, the contentions raised by them in the Original Petition being substantially the same as those raised by way of objections to the execution petition;


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