Balakrishna Pillai Vs Parameswaran Pillai

K. Sankaran, C.J.@mdashThis appeal by the judgment-debtor is against the lower court''s order dismissing his petition for relief under Act XXXI of 1958 of Kerala. The lower court found that the defendant is not an agriculturist because he has been assessed to Agricultural income tax and that he comes under Exception (iii) to section 2 (a) of the Act. The only evidence in support of that conclusion was a Gazette Notification showing that Revenue Recovery Proceedings had been started against the properties in his possession for recovery of areas of agricultural income tax. This notification by itself is not conclusive to show that this defendant had been assessed to agricultural income tax to the extent contemplated by Exception (iii) to section 2 (a) and also for the period specified therein. The debtor appellant has produced a certificate obtained from the assessing office and it prima facie shows that the above conditions are not satisfied so far as he is concerned. The burden of proof that the debt fails under the excluded category mentioned in Exception (iii) is on the creditor. On behalf of the creditor it is stated that he had not sufficient opportunity to discharge that burden and that he may be given one more chance. We are inclined to grant this request. In the result, the order of the lower court is set aside and the case sent back to the lower court for fresh disposal after allowing the creditor to discharge his burden of proof and after allowing the debtor a chance to adduce counter evidence, if any. We make no order for the costs of this appeal.