Vasudevaru vs Idichandy Oommen

Madhavan Nair J.

These cases have been referred to a Full Bench because of the common question arising in them, namely:

Whether an appeal lies from an order dismissing an application under sub-section (2) of section 11 of the Kerala Agriculturists Debt Relief Act, XXXI of 1958 (hereinafter called the D. R. Act) "

The answer to that question turns on the interpretation of sub-section (3) of that Section, which reads thus:

Along with the application made under sub-section (2), the mortgagor shall pay court fees as for a suit for redemption on the balance of the mortgage amount and the court shall put the mortgagor in possession of the property and pass an order allowing the mortgagee to recover by sale of the mortgaged property the said balance amount in ten equal half-yearly instalments together with the interest accrued due on such balance outstanding till the date of payment of each instalment at five per cent per annum, the first instalment being payable within a period of six months from the date on which the mortgagor recovered possession of the property mortgaged. On payment of the last instalment the mortgage shall be deemed to be discharged and an order passed under this sub-section shall be deemed to be a decree.

Sri T.K. Narayana Pillai contended that the word ''decree'' in the above sub-section cannot be taken to mean a decree under the CPC or a decree appealable as that would be adding words to the enactment. Though counsel put it vehemently we do not feel persuaded. The D. R. Act does not purport to create a new kind of decrees, but says only that an order under sub-section (3) of section 11 "shall be deemed to be a decree." Obviously the definition of a decree has to be sought elsewhere, in some other law than the D. R. Act. Counsel was asked to point out a definition that would apply to the decree mentioned in the D. R. Act, but was not able to give us any other than that in the Code of Civil Procedure. We have therefore to take the word ''decree'' in sub-section (3) of Section 11 of the D. R. Act to mean a decree defined in the Code of Civil Procedure, in which case it would be appealable as stated in the code unless shown expressly made non-appealable by some other provision of law.

Counsel contended that Section 23A of the D. R. Act, that provides for appeals against orders under certain sections of the Act, does not include orders under sub-section (3) of Section 11, and that such non-inclusion means that the legislature did not intend to make them appealable. We cannot agree. Section 96, C. P.C. provides:

Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

The non-mention in Section 23A relied on by counsel is not tantamount to an express prohibition of appeal; at best it may be an implication, which is immaterial u/s 96, C. P.C. To us, the result of such non-mention in Section 23A appears not to prohibit, but to enlarge the appealability of the order. Section 23A provides only for one appeal against orders specified therein. But, orders deemed to be decrees are appealable once u/s 96 C. P.C., and again u/s 100 C. P.C. if it involves a question of law, if the second appeal is disposed of by a Single Judge who certifies the case fit for a further appeal, appealable again u/s 5 of the High Court Act. The non-mention of orders under sub-section (3) of Section 11 among the orders made appealable u/s 23A of the D. R. Act cannot therefore spell out a legislative intention to exclude appeals from such orders.

It is then contended that an order under sub-section (3) of Section 11 can only be an order granting the reliefs mentioned therein, but not one refusing the same. We do not see any force in this contention either. The reliefs that may be granted on an application moved under sub-section (2) are delineated in sub-section (3). The latter sub-section cannot be taken to mean that, whenever an application is moved under sub-section (2) and the requisite court-fee paid, the Court is bound to grant the reliefs mentioned therein irrespective of the other facts in the case. That the imperatives in the sub-section are not absolute can be seen from the fact that though it directs "the Court shall put the mortgagor in possession of the property," sub-section (4) enacts that a tenant entitled to fixity u/s 43 of the Malabar Tenancy Act cannot be affected thereby. It is then clear that the expressions in the sub-sections are not used in a strict or absolute sense.

When an application is moved under sub-section (2) of Section 11 the Court may allow it, or dismiss it, or pass some erroneous order thereon. In all those cases the disposal is one under sub-section (3), though that sub-section in terms refers only to the reliefs to be granted in allowing the application. In Kutteer Vengayil Rayarappan Nayanar, Karnavan of Kutteer Vengayil Tarwad Vs. Kutteer Vengayil Valiya Madhavi Amma and Others, the Madras High Court observed:

If an order removing a receiver were appealable, then an order refusing to remove a receiver would also be appealable and vice versa, but held that an order removing a receiver is not one under Rule 1 of Order XL, C. P.C. and is not appealable. But the Federal Court held that, reading order XL, Rule 1, Civil Procedure Code, along with Section 16 of the General Clauses Act, an order removing receiver falls within the ambit of that Rule and is appealable under Order XLIII, Rule 1 (s) C. P.C. and added, disapproving Ramaswami Naidu and Others Vs. Ayyalu Naidu, ,

There the order appealed against was one refusing to remove a person from his position as receiver. This distinction, however does not materially affect the question.

It is clear from the above observations of the Madras High Court and of the Federal Court that if an order removing a receiver is an order under Order XL, Rule 1, C. P.C. an order refusing to remove a receiver will equally be under that Rule though it is not expressly stated so in the Rule. It then follows that the expression "an order passed under this sub-section" in sub-section (3) of Section 11 of the D. R. Act covers an order granting the reliefs mentioned in that sub-section as well as one refusing to grant such reliefs; and that both are appealable as decrees.

The question is answered accordingly. The cases will be placed for disposal before the learned Judges who ordered the reference.

Govindan Nair J:-

I am unable to agree. Sub-section (2) of Section II of the Kerala Agriculturists Debt Relief Act, 1958, provides that a mortgagor shall on application be entitled to recover the property mortgaged. This is made subject to the conditions mentioned in clauses (a), (b) and (c) of that sub-section. It is only when those conditions are satisfied that the mortgagor is entitled to recover the property. Whether those conditions are satisfied or not will naturally have to be decided by the Court before which the application contemplated by sub-section (2) of Section 11 is moved. Such a decision, one should expect, will be embodied in a written order. Such an order will not fall under sub-section (3) of Section 11. In fact, the only order contemplated by sub-section (3) of Section 11 is an order allowing the mortgagee to recover by sale of the mortgaged property the balance of the mortgage amount in ten equal half-yearly instalments. A refusal to pass such an order which the Court should have passed in given circumstances (for instance when it has been found that the mortgagor has complied with the formalities provided by the statute and the conditions prescribed by sub-section (2) of Section 11) may also fall under sub-section (3) of Section 11. Such orders passed, under the sub-section are deemed to be ''decrees'' by the sub-section and the ''decree'' mentioned in the sub-section is a decree within the meaning of that term in the Code of Civil Procedure. Those orders are therefore appealable. But only such orders are appealable.

Orders passed on the application moved under sub-section (2) of Section II, either allowing or rejecting it must fall under sub-section (2) of Section 11. Those orders are appealable if there is provision in the Statute, making such orders appealable or if it can be held that those orders represent adjudications by a civil court following the normal procedure applicable to such courts and conclusively determining the rights of parties. There is no provision in the Statute providing for appeals from such orders. Section 23A of the Act has made certain orders passed under the Statute appealable. An order u/s 11 is not one such. It is not possible to construe--it was not even so suggested--such an order as a decree, applying the principles laid down by the Privy Council in (1947) L.R. 74 I.A. 264 (Privy Council) for the Section has expressly provided that only certain orders are decrees thus stipulating by necessary implication that other orders are not decrees. The orders in question in the three Revision Petitions before us are all orders rejecting the applications moved u/s 11 (2). The question raised need not be considered so far as S.A. No. 706 of 1960 is concerned for the lower appellate court has entertained the appeal and reversed the decision of the first court. So an appeal would in any case, be maintainable from the appellate order. The orders questioned in the Revision Petitions are not appealable. After all the right to appeal from a decision is a creature of the Statute and it must be expressly provided by the Statutes. I am unable to spell out from the provisions of the Statute, any right of appeal. No doubt it is desirable and even necessary that there should be such a right in matters arising u/s 11. But it is for the Legislature to rectify this omission.