Mathew vs Chandy and Others

M. Madhavan Nair, J.—This second appeal is by the decree-holder in a suit for money. The decree is dated 28-2-1955. In execution, the 1st defendant''s properties were brought to sale on 27-7-1957 and purchased by the decree-holder. The sale was confirmed on 28-7-1957. On 5-10-1957 the 1st defendant filed a petition purporting to be under Order XXI, Rule 90 and Section 47 C.P.C. and claiming the benefit of Section 18 of the Limitation Act to have the sale set aside. The Munsiff held the petition barred by limitation and dismissed it. The District Judge, on appeal, held the sale to be contrary to the provisions of Section 3 of the Travancore-Cochin Indebted Agriculturists. Relief Act, III of 1956, and therefore allowed the petition. Hence this second appeal. Section 3 of the Trvancore-Cochin Indebted Agriculturists'' Relief Act, 1956 (which shall hereinafter be referred to as ''the Act'') reads:

(1) No suit for recovery of a debt shall be instituted, and no application for execution of a decree in respect of a debt shall be made against any agriculturist in any civil or revenue court before the expiry of six months from the commencement of this Act.

..........

The District Judge has held that the prohibition in this Section deprived the Civil Court of its jurisdiction to execute a money decree against an agriculturist, and assumed that "the decree states that he (the 1st defendant) is an agriculturist". Counsel for the respondent, when called upon to tell how the decree indicated the 1st defendant to be an agriculturist, could only say that in the cause title to the decree he has been described as a farmer. The term ''Agriculturist'' is defined in the Act thus:

''Agriculturist'' means a person who has an interest other than interest as a simple mortgagee in any agricultural or horticultural land, but does not include--

(i) any person liable to pay land revenue exceeding one hundred rupees per annum in any year after 1952-53

(ii) any person assessed to profession tax on income derived from a profession other than agricultural under any law governing municipal or local bodies in India on a half yearly income of more than nine hundred rupees in any half year after 1952-53;

(iii) any person assessed in any half-year after 1952 53 to property or house tax on an annual rental value of not less than six hundred rupees in respect of buildings (other than a building in which he lives) or lands other than agricultural lands under any law governing municipal or local bodies in India;

(iv) any person assessed to sales-tax on a total turnover of not less than twenty thousand rupees in any year after 1952-53 under the Travancore-Cochin General Sales Tax Act, 1125 (XI of 1125), or under the law of any other State relating to sales-tax;

(v) any person assessed to income tax under the Indian income tax Act, 1922 (II of 1922), in any year after 1950-51;

(vi) any person assessed to agricultural income tax in any year after 1950-51 under the Travancore-Cochin Agricultural income tax Act, 1950 (XXII of 1950), or under the law of any other State relating to agricultural income tax ;

(vii) a firm registered under the Indian Partnership Act, 1932 (9 of 1932), or a company as defined in the Companies Act, 1956 (1 of 1956), or a corporation formed in pursuance of an Act of Parliament of the United Kingdom or of any special Indian Law:

Explanation I. Where a Joint Hindu family or tarwad, tavazhi, or illom is an agriculturist, every coparcener or member of the tarwad, tavazhi or illom, as the case may be, shall be deemed to be an agriculturist, provided that he does not fall under any of the categories specified in sub-clauses (i) to (vi).

Explanation II. The provisions of this Act shall not apply to any person who is not an agriculturist on the commencement of this Act;

The Act came into force on September 11, 1956. It is clear that every person who had been a farmer on the date of the decree would not be an agriculturist within the meaning of the Act, and therefore the observation of the District Judge that the decree indicated the 1st defendant to be an ''agriculturist'' is incorrect. But, it is not disputed before me that the 1st defendant was in fact an agriculturist within the meaning of the Act both at the time of the disputed execution proceedings and at the commencement of the Act.

The question then is of the validity of the court sale had on 27-7-1957. It may at once be noted that the court-sale was more than three months after the expiry of the prohibition enacted in Section 3 of the Act. Mr. K.A. Varghese, with his usual clarity and force of argument, contended that the execution petition having been filed during the period of prohibition u/s 3 of the Act the Court had no jurisdiction to proceed with it and therefore the court sale had thereon was beyond jurisdiction and void.

The above contention is well answered in Narayan Anandram v. Gowbai (I.L.R. 37 Bom 415). There the property of an ''agriculturist'' mortgagor was sold in execution of a money decree, and the rights of the auction-purchaser became vested by successive assignments in the mortgagee. The Dekkhan Agriculturists'' Relief Act, 1879 by its Section 22, prohibited execution of a simple money decree against immovable properties of an agriculturist debtor. It provided:

Immovable property belonging to an agriculturist shall not be attached or sold in execution of any decree or order passed whether before or after this Act comes into force, unless it has been specifically mortgaged for the repayment of the debt to which such decree or order relates and the security still subsists. For the purposes of any such attachment or sale as aforesaid standing crops shall be deemed to be moveable property.

Treating the court-sale as without jurisdiction and therefore a nullity, the mortgagor sued to redeem the mortgage; and the mortgagee relied on the court-sale to contend that the mortgagor had lost his equity of redemption and therefore could not redeem. The Subordinate Judge, before whom the matter came up in the first instance, held "that the auction-sale relied on by the defendants was illegal u/s 22 of the Dekkhan Agriculturists'' Relief Act and was a nullity" and decreed the suit; the District Judge on appeal confirmed the same; and a learned Judge of the Bombay High Court dismissed the second appeal as it was "conceded that the mortgagors now are agriculturists, have always been agriculturists and therefore were so at the time of the suit and subsequent proceedings in the Vinchur Court.". But, in Letters Patent Appeal, Scott C.J., speaking for himself and also for Chandavarkar J., held :

Now the provisions of section 22 of the Dekkhan Agriculturists'' Relief Act are provisions conferring upon members of a certain class great privileges in litigation. The section confers upon a person who is shown to be a member of the privileged class the right to resist the attachment or sale or any of his immovable property and to contend that if an attachment or sale took place in violation of the provisions of the section, such attachment or sale shall be held to be void.

How then is the Court to know when it is authorized to attach and sell property and when it is not ? The ordinary rule is that set out in the Civil Procedure Code, Section 60, which reproduces section 266 of the Code of 1882. It provides that property liable to attachment and sale in execution of a decree is lands, houses, etc., belonging to the judgment-debtor. An agriculturist in order to resist the application of that general rule must, we think, show that he belongs to the privileged class so as to render section 22 of the Dekkhan Agriculturists Relief Act applicable to his case. That conclusion seems to follow from the provisions of sections 101, 102 and 103 of the Evidence Act. In the absence of proof we, therefore, hold that there is no reason to treat the immovable property sold by the Vinchur Court as the property of an agriculturist.

and dismissed the suit adopting the dictum of Sir Lawrence Jenkins,

The house, apart from clause (c) section 266 (present S. 60 C.P.C.), clearly could be attached and sold in execution of the decree, and it was only if it were shown that it fell within clause (c) that it could not be attached and sold. But admittedly the judgment-debtor never suggested, much less proved, that clause (c) had any application to the case. It is a general rule that in Courts of law only those facts can be taken to exist which are proved; so that it is manifest that in the absence of proof the exemption from liability to attachment or sale did not exist for the purposes of the execution proceedings. Therefore the executing court had complete jurisdiction to make the order it did.

The facts of that case are very similar to those of the present case and I am in respectful agreement with the above observations of their Lordships.

That the Legislature did not mean the prohibition in Section 3 of the Travancore-Cochin Indebted Agriculturists'' Relief Act, 1956 to annul the general jurisdiction of the Civil Courts is clear from sub-section (2) of Section 3 of the Act which reads: Notwithstanding anything contained in sub-section (1), where a creditor files a suit for recovery of a debt during the period specified in sub-section (1) or.........., the Court shall in decreeing the suit direct the plaintiff to bear his own costs and pay the costs of the defendant who is an agriculturist.

The prohibition in sub-section (1) is alike in regard to suits and applications for execution, and sub-section (2) makes it clear that the prohibition is neither absolute nor jurisdictional in the case of suits. The effect of the prohibition on applications for execution cannot be different. It is then clear that section 3 of the Act only confers a privilege upon a defined class of agriculturists. It behoves on the person claiming that special privilege to plead the same and prove his title thereto in due time, or else he will be debarred from claiming it at a belated stage by the proceedings against him having become final and conclusive.

The view of the District Judge that the Court sale being in contravention of Section 3 of the Act was without jurisdiction cannot therefore be upheld.

The 1st defendant has a case that all processes were suppressed by the fraud of the decree-holder designed to conceal the execution proceedings from him; and therefore the sale must beset aside giving him the benefit of Section 18 of the Limitation Act. As the District Judge held the sale without jurisdiction those averments have not been investigated by him. It becomes therefore necessary to remit the matter to the court below for a decision on the averments of the 1st defendant. I would take this opportunity to impress upon the subordinate courts the necessity of deciding all the points raised before them to obviate the inconvenience and expense of a remand in Second Appeal.

The costs herein will be costs in the cause and will abide the result of the case in the court below.