09 October 1996
Supreme Court
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NARAYAN DAS DWARKA DAS Vs BENGORM AND ANR.


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PETITIONER: NARAYAN DAS DWARKA DAS

       Vs.

RESPONDENT: BENGORM AND ANR.

DATE OF JUDGMENT:       09/10/1996

BENCH: B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Paripoornan.J.      Special leave granted. 2.   The 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. Pending the  special leave  petition, the  applicant and the second respondent  in Original  Petition No. 1 of 1976 died. One  Sunderads  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 representatives:- 1.   Rahul ) 30/D, P.K.P. Layout (Upstairs)            ) Thadasam Road 4th Cross 2.   Sachin) Coimbatore - 641 002 3.   Vijaya Narayandas, New Road, West Hill, Calicut - 5       (Kerala).      The 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 recorded. 3.   We heard counsel. 4.   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

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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. 5.   The 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 1970. 6.   In 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. 7.   It is common ground that the trial court found that the appellant is an agriculturist within the meaning of the Act. It is 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. 8.   Section 2(4)  of the Kerela Agriculturists’ Debt Relief Act, 1970 is to the following effect:-      Section 2 (4) :-      "(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...."      The 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

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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.