Decided on August 24,1967



- (1.) The decree holder in OS. 211/58 of the Munsiff's Court, Adoor has preferred this Second Appeal against the order of the lower appellate court holding that the judgment debtor the first defendant is entitled to the benefits of Act 31/58 and that the decree can be executed only in accordance with the provisions of the said Act.
(2.) The first defendant had executed a document of sale Ext. D-l dated 27 8 1113 on behalf of himself and bis minor sons in favour of the second defendant. One Chacko who is the husband of first plaintiff and father of plaintiffs 2 and 3 obtained an assignment of the rights of the second defendant. Subsequently, a suit was instituted by the children of the first defendant impeaching the alienation effected by the first defendant in favour of the second defendant and this suit O.S. 476/1123 resulted in a decree whereunder the sale deed was upheld only in regard to the proportionate interest of the first defendant and was set aside to the extent of the interests of the minors. The plaintiffs thereupon brought O.S. 211/58 as heirs of Chacko, who had by then died, seeking to recover damages from the first defendant for breach of the covenant of title contained in the sale deed Ext. D-l. Like relief was also claimed in the suit against the second defendant the immediate vendor of Chacko. While executing Ext. D-l sale deed, the first defendant had created a security in favour of the vendees over the present plaint schedule properties for the discharge of any claims arising out of a possible breach of the covenant for title and quiet enjoyment. Therefore, in the present suit relief was claimed against the properties so secured which have been included in the schedule to the plaint. The court passed a decree in favour of the plaintiffs for recovery of a sum of Rs. 473-48 as and by way of damages by sale of the plaint schedule properties. The decree was passed on 24 2 1960, the suit itself having been instituted only on 13 12 1958. It is this decree that is now under execution.
(3.) Before the executing court, objection was raised on behalf of the first defendant judgment debtor that he is entitled to protection under Kerala Act 31/58 and that the decree can be executed only in accordance with the provisions of the Act. The Trial Court rejected this contention holding that the liability under the decree is a liability arising out of a breach of trust and is therefore, excluded from the purview of the definition of "debt" contained in S.2 (c) of the Act. On appeal by the first defendant, the lower appellate court took the view that the decree cannot be said to be one in respect of a breach of trust but is only with respect to a liability arising out of a breach of contract and that therefore, the decree debt is liable to be scaled down under Act 31/58. In this view, it set aside the executing court's order and held that the decree holders are entitled to execute the decree only in accordance with the provisions of Act 31/58. The first plaintiff-decree holder has thereupon come up to this court with this Second Appeal.;

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