Thomma Varkki Vs. Thomas Jacob - Court Judgment

Govindan Nair, J.

1. These appeals arise from an order passed by the Additional District Judge Kottayani on applications moved before that Court under Section 22 of the Kerala Agriculturists Debt Relief Act, hereinafter referred to as the Act. The execution sale in the case took place on 9-8-1116. Some eight years before that date, the first defendant died, and his legal representatives have been impleaded. Two of them are defendants 7 and 9. Defendant 7 moved C. M. P. No. 880 of 1961 for setting aside the sale which related to his property and defendant 9 moved C. M. P. No. 881 of 1981 which was for vacating the sale of his property. The applications were moved on 8-3-1981. The applications have been allowed.

2. Though one of these cases is styled an 'appeal suit' and the other, a civil miscellaneous appeal', we take it that these are appeals coming under Section 23A of the Act and we treat them as such.

3. The point that is taken is that there is inordinate delay in moving the applications, which as we mentioned earlier was on 8-3-1961, whereas the execution sale had taken place more than two decades before, on 9-8-1116. The sale having taken before the commencement of the Act is liable to be vacated under the provisions of the Act, The only question is whether the applications had been moved within the period of one year insisted on by the fourth proviso to Section 22 (1) (b) and if it has not been so moved, whether by virtue of the provisions in Section 22 of the Act, the delay in moving the Court can be excused by applying the provisions of Section 5 of The Indian Limitation Act, 1908.

4. We have already held in Pulikottil Tharappan v. Perumbulli Manakkal Purushothaman Nambudiri, C.R.P. No. 282 of 1982: (AIR 1985 Ker 284 (FB)) that it is not possible to read the fourth proviso to section 22 (1) (b) reading as under :

'Provided also that in the case of a sale in execution of a decree for the realisation of arrears of rent or michavaram the application under this Sub-section for setting aside the sale may be made at any time within one year from the commencement of this Act'

to mean that the application has to be made within one year of the date of publication of the amending Act. The applications moved on 8-3-1961, nearly three years after the date of commencement of the Act, were clearly moved beyond the time allowed by the proviso. The only question therefore -is whether by; virtue of Section 22 which enacts that the provisions in Section 5 of the Indian Limitation Act, 1908 may be applied, the delay in moving the applications can be excused.

This in turn depends upon the question whether there has been sufficient cause for not moving the Court earlier. The cause for not moving the Court earlier is stated to be that the right to move the Court itself was conferred only by the amending Act which was published on '30-1-1961 and, it is said that though the statute assumes that the right had come into existence as early as 14-7-1958, the parties actually came to know of the provision only by its publication on 30-1-1981 and that therefore there was sufficient cause for not moving the Court earlier. We; are not prepared to say that this is not 'sufficient reason and we do not think we should interfere with the discretion exercised by the Court below excusing the delay in moving the Court in the circumstances. The appeals therefore fail and are dismissed. We make no order as to costs.