V.M. MADHAVI AMMA Vs. C.K. MADHAVI AMMA

JUDGEMENT

(1.) The revision petitioner who is the 2nd judgment debtor filed an application claiming the benefits under the Kerala Debt Relief Act, 1977. This was when execution was taken out by the holder of a decree in a suit for partition for realisation of a sum of Rs. 2,867.51 from respondents Nos. 1 to 3 in the EP. The sum sought to be recovered as aforesaid was awarded by the decree as profits of the property (Imem-Zm-bw) payable by these judgment debtors to the decree holder. The decree holder contended that the decree for money as aforesaid would fall within exception (g) to S.2(3) of the Act defining the word 'debt'. Under clause (g) aforesaid 'any liability for which a charge is provided under sub clause (b) of clause (4) of S.55 of the Transfer of Property Act, 1882' is not a debt falling within the purview of the definition clause in S.2(3) of the Act. On that basis it was contended that the revision petitioner is not entitled to the benefits of the Act. The lower court upheld the contention advanced by the decree holder as aforesaid. Hence this revision at the instance of the 2nd judgment debtor.

(2.) A preliminary contention has been advanced on behalf of the respondents that after the lower court passed the order under revision, that court has sold the property in execution of the above said decree, that the 5th respondent herein has purchased the same in the court auction, and that therefore, this revision petition has become infructuous in so far as, according to the learned counsel for them, even assuming the order under revision is wrong the only course open to that court is to confirm the sale subject to the result of the order that may be passed on an application that has been filed by the revision petitioners under O.21 R.90 of the Code. The learned counsel in support of this contention relies on Janak Raj v. Gurdial Singh ( AIR 1967 SC 608 ) and Hukumchand v. Bansilal ( AIR 1968 SC 86 ).

(3.) In the Hukumchand case (AIR 1968 SC 86), the respondents therein mortgaged their properties to a Cooperative Society. The Registrar of Cooperative Societies passed an award therein in favour of the society. This award was put in execution in a civil court. In execution the said properties were sold on 7th April 1958. The appellant bid in auction. The respondents filed an application under O.21 R.90 on 3rd May 1958. During the course of these proceedings all the parties including the auction purchaser agreed to have the sale set aside on the respondents depositing certain amount -- the decretal amount and the auction -- purchaser's commission -- on or before 21st November 1958. The court passed an order in terms thereof. The respondents on 20th November 1958 sought for an extension of the time fixed for making the deposit by one day on the ground that 21st November 1958 happens to be a holiday. The decree holder society and the auction purchaser opposed it. The execution court dismissed this application on 22nd November 1958 and confirmed the sale the same day. The Supreme Court held this was right as S.148 of the Code would not be attracted to time fixed by agreement of parties, and that sale having been confirmed O.34 R.5 would also be of no assistance to the respondents -- since no amount was deposited before confirmation. It is in these circumstances that the Supreme Court said:-