Karthiayini Amma vs Vasudevan Pillai

S. Velu Pillai, J.—The appellant obtained a decree against the respondent for redemption of a mortgage. After the decree, when the Kerala Agriculturists Debt Relief Act, 1958 (Act XXXI of 1958) came into force, the appellant sought to invoke the provisions of Section 11 and claimed relief under it. The Munsif dismissed the petition, holding that the mortgage is excluded from the purview of section 11 by reason of Section 25(c). The appellant appealed against the Munsif''s decision to the Additional District Judge, Parur, who dismissed the appeal on the preliminary ground that no appeal lay against an order u/s 11. This second appeal is directed against the order of the Additional District Judge. Section 23A of the Act is the only provision in the Act conferring a right of appeal and this is conferred only in respect of orders specified in that section. An order u/s 31 is not one of them, and was not therefore intended to be appealable. But it was argued, that the order in the present case must be deemed to have been passed by the Munsif u/s 47 of the CPC in execution of the decree for redemption. For one thing, by invoking Section 11, the appellant is not executing or enforcing any of the provisions of the decree, but is seeking to enforce certain new rights which the legislature has conferred on mortgagors in general. For another, the legislature has also prescribed a special procedure for doing so. Under sub-section (3) of Section 11, "the mortgagor shall pay court fees as for a suit for redemption on the balance of the mortgage amount" remaining after the prescribed deposit is made. Then the court is called upon to put the mortgagor in possession of the properly. The mortgagee is to be allowed by a special order to recover by sale of the mortgaged property, the balance of the amount due in specified instalments and this order is to be deemed to be a decree. In my opinion it is impossible to dovetail these provisions into the process of execution of a decree. I am in agreement with the Additional District Judge in holding, that the proceeding initiated by the appellant u/s 11 was an original proceeding and not a proceeding in execution of the decree allowing redemption on different terms, even granting that the existence of the decree created no bar to the enforcement of. the right u/s 11. For these reasons the second appeal fails and is dismissed with costs.

Leave to appeal granted.