Das Dwarka Das Vs. Bengorm & Anr  INSC 1278 (9 October 1996)
Jeevan Reddy, K.S. Paripoornan Paripoornan.J.
applicant in Original Petition No. 1 of 1976, Subordinate Judge's court, Kozhikode, filed the special leave petition.
Respondents 1 and 2 in Original Petition No.1 of 1976 are the respondents in
the special leave petition.
the special leave petition, the applicant and the second respondent in Original
Petition No. 1 of 1976 died.
Narayandas and Vijaya Narandas filed an application to get themselves impleaded
as the legal representaives of the petitioner in the special leave petition.
The said Sunderdas Naravandas, one of the heirs, also died on 5.7.1993. Stating
these facts an application was made to implead the following persons as legal
) 30/D, P.K.P. Layout (Upstairs) ) Thadasam Road 4th Cross
Coimbatore - 641 002
Narayandas, New Road, West Hill, Calicut - 5 (Kerala).
said application was allowed by this Court by order dated 22.7.1996. It was
further brought to the notice of this Court at the time of hearing that the
said persons are also the legal heirs of the second respondent. This is
This appeal is filed against the judgment of the High Court of Kerala, rendered
in MFA No. 149 of 1983, dated 5th May, 1988. The original appellant filed
Original Petition No. 1 of 1976 before Subordinate Judge's Court. Kozhikode under Section 15 of the Kerala
Agriculturists Debt Relief Act, 1970 for full settlement of his debts.
According to him, he has two items of immovable properties in Kerala shown in
the schedule of the petition. They are situate in Kozhikode Taluk. Item one is
residential property and item two is a Paramba, adjacent to it. The first
respondent filed O.S. No. 488/83 before the Bombay High Court and obtained a
decree against the original appellant. It was put in execution in the Kerala Court. The original appellant is liable to
pay Rs.1,20,000/- to the first respondent and Rs.57,000/- to the second
respondent. Stating that he is an agriculturist coming under the purview of the
Kerala Act 11 of 1970, he prayed for full settlement of his debts as provided
under Section 15 of the Act.
application was allowed by the trial court by order dated 30.9.1982. The trial
court found that the original appellant is an agriculturist within the meaning
of Section 2(1) of the Act. The trial court further held that the appellant
would be entitled to seek the benefit of the Act when the decree obtained by
the first respondent in Bombay
Court is put in
execution in Kerala
Court and there is no
impediment for him to avail the benefits confcrred by Section 15 of Act 11 of
the appeal filed by the first respondent the High Court noticed the finding of
the lower court that the original appellant is an agriculturist within the
meaning of the Act and so he will he entitled to maintain the application under
section 15 of the Act. It further found and, in our opinion, correctly, that
there is no sufficient evidence on record to prove that there is any
outstanding debt due to the second respondent. The sole debt was due to the
first respondent (only). But in the opinion of the High Court, a debt which
arose out of the suit filed in Bombay High Court and decree obtained from the
said court on the basis of mortgage deed, executed by the original appellant,
cannot be considered to be a debt within the meaning of Section 2(4) of the
Act. On this basis, the High Court allowed the appeal filed by the first
respondent and dismissed the application filed by the original appellant by
judgment dated 5.5.1988. It is thereafter the original appellant filed the
special leave and the above appeal has come up for hearing.
is common ground that the trial court found that the appellant is an
agriculturist within the meaning of the Act.
further agreed that there is no sufficient evidence on record to prove that
there is any outstanding debt due to the second respondent. The only debt that
existed was owed to the first respondent.
Section 2(4) of the Kerela Agriculturists' Debt Relief Act, 1970 is to the
following effect:- Section 2 (4) :-
"debt" means any liability in cash or kind, whether secured or
unsecured, due from or incurred by an agriculturist on or before the
commencement of this Act, whether payable under a contract, or under a decree
or order of any court, or otherwise, but does not include...."
High Court has not found that the instant debt is one covered by the exception
specified in section 2 (4) of the Act. Nonetheless the High Court has taken the
view that a decree obtained from the Bombay court on a mortgage deed executed by the original appellant cannot be
considered as a debt within the meaning of Section 2(4) of the Act. No basis or
reason has been given to reach such a conclusion. That is a vital aspect to be
considered in the case. Insofar as the High Court has not considered the matter
in a proper perspective and has also failed to state the basis or reasons to
hold that the debt in the instant case cannot be considered to be one coming
within the purview of Section 2 (4) of the Act, we are constrained to set aside
the Judgment of the High Court. We hereby do so. The matter is remitted to the
High Court to restore the appeal in MFA No. 149/83 to its file and dispose of
the same in accordance with law. The appeal is allowed. There shall be no order
as to costs.
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