Nabisa Ummal vs Cherian

Joseph, J.—The 2nd defendant, whose application to set aside a court sale was dismissed by the court below is the appellant. One of the grounds relied on by the appellant was that execution was taken for the whole amount covered by the decree in violation of the provisions of Act III of 1956 (T-C). The court below over-ruled this, holding that the sale was conducted after the expiry of six months from the commencement of the Act and that the judgment-debtor had not sought relief under Act III of 1956. This view is not correct. If the judgment-debtor was otherwise entitled to relief under the Act, execution should not have been levied contrary to the provisions of section 4(2) of the Act. In other words, the decree-holder could have executed the decree only in respect of the defaulted installments and not the whole amount under the decree. Learned Counsel for the respondent fairly conceded this position. It is however urged that the decree-holder had a contention that the judgment-debtor was not an agriculturist and that this was not considered by the court below. In the circumstances, we are of opinion that the matter requires reconsideration. We accordingly allow the appeal, set aside the order of the court below and remand the application for setting aside the sale to the court below for fresh decision. Both sides are directed to bear their costs.