LEKSHMIKUTTY AMMA Vs. BATHU KUDIMI MATHU
HIGH COURT OF KERALA
BATHU KUDIMI MATHU
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(1.) The revision petitioner is the decree holder in O. S. No. 462 of 1961 on the file of the Munsiff's Court, Cochin. He obtained the decree for sale of the suit property in enforcement of a mortgage dated 7-1-1124 executed in his favour by the respondent herein. The mortgage had been executed to secure the balance of the sale consideration due by the mortgagor (respondent) to the mortgagee (petitioner) under an assignment deed of even date respecting the plaint property itself.
(2.) When the decree holder took steps to execute the decree, the judgment debtor (respondent herein) filed an application under S.7 of the Kerala Agriculturists Debt Relief Act, 1958, Act 31 of 1958 (hereinafter referred to as the Act) praying that the decree should be amended in accordance with the provisions of the Act on the ground that he was an agriculturist entitled to the benefits of the Act. The application was opposed by the decree holder who contended that the liability under the decree was not a 'debt' since the mortgage sued on had been executed to secure the amount of purchase money remaining unpaid in respect of a transaction of sale of immovable property between the same parties and was therefore covered by the exemption contained in S.2(c)(vii) of the Act. The lower court overruled the above objection raised by the decree holder relying on the decision of a Division Bench of this Court reported in Kochukunju Kunjukunju v. Sankaran Ambujakshan, 1962 KLT 254 , wherein it has been held that in order to come within the scope of S.2(c)(vii) of the Act the transaction of sale out of which the liability arose should have been governed on its date by the provisions of the Transfer of Property Act, 1882.
(3.) As the revision petitioner is challenging the correctness of the above Division Bench ruling, Raghavan, J. before whom this case originally came on forbearing considered that it is desirable that there should be an authoritative pronouncement on the matter by a Full Bench, particularly in view of certain observations contained in a later Division Bench decision reported in Beevi v. Pareed, 1965 KLT 104 , expressing a doubt regarding the correctness of the decision rendered in 1962 KLT 254, and the case has therefore been referred to this Full Bench.;
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