Decided on November 22,1974



- (1.) This appeal was heard and allowed by our judgment in Gourikutty Amma v. District Collector, Alleppey reported in 1974 KLT 103 . The view that we took in the judgment was that S.44 of the Kerala Revenue Recovery Act, 1968 for short, the Act, was not, attracted, , We allowed the review application (Review Petition 25 of 1974) and set aside the judgment today because we had not considered the effect of S.68(4) of the Act read with the third paragraph of sub-s.(1) of that section and in the light of S.28 of the Abkari Act, 1077 (Act 1 of 1077).
(2.) We have heard the appeal afresh. The question that arose for determination was whether the amounts made recoverable as if those amounts represented arrears of land revenue by virtue of S.28 of the Abkari Act, 1077 can be recovered in the manner provided by S.44 of the Act by attaching properties that have, been transferred by the defaulter after the issue of notice contemplated by that section by drawing the presumption that the transfer was intended to defeat the creditors. Before we extract the section it is necessary to state a few facts.
(3.) The appellants before us are the wife and daughter of a person from whom admittedly amounts were due under the Abkari Act 1 of 1077. Notice was issued to him for recovery of those amounts. After the issue of such notice the defaulter transferred the properties that have been attached to the appellants. The appellants in the original petition sought a cancellation of the attachment on the ground that the properties had become theirs before the attachment was effected and the properties could not therefore be attached for amounts due from the defaulter. The learned Judge who heard the original petition dismissed the original petition in view of the provision in S.44 of the Act. In appeal we took the view that S.44 is not attracted because the amount due from the defaulter was not public revenue due on land or land revenue. The view we took requires reconsideration in the light of the specific provisions in S.28 of the Abkari Act and S.68 (1) and (4) read with S.44 of the Act. We shall extract S.28 of the Abkari Act, 1077. "28. Recovery of duties. All duties, taxes, fines and fees payable to the Government direct under any of the foregoing provisions of this Act or of any license or permit issued under it, and all amounts due to the Government by any grantee of a privilege or by any farmer under this Act or by any person on account of any contract relating to the Abkari Revenue may be recovered from the person primarily liable to pay the same or from his surety (if any) and if they were arrears of Land Revenue, and, in case of default made by a grantee of a privilege or by a farmer, the Commissioner may take grantor farm under management at the risk of the defaulter or may declare the grant or farm forfeited, and resell it at the risk and loss of the defaulter. When a grant or farm is under management under this section, the Commissioner may recover any moneys due to the defaulter by any lessee or assignee as if they were arrears of land Revenue.";

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