TMI Blog2002 (12) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 10,000/- was received by Mohankumar on the same day. As Mohankumar committed breach of the agreement, Asok Kumar filed O.S. 208/88 before the Munsiff's Court, Neyyattinkara for specific performance of the agreement and in execution of the decree passed by the court against Mohankumar, registered assignment deed was executed through court conveying the plaint schedule property in favour of Asok Kumar. Asok Kumar did not take delivery of the property through court Subsequently Asok Kumar and Mohankumar jointly assigned the property in favour of the plaintiff for valid consideration as per registered assignment deed No. 17/92 of Kanjiramkulam Sub Registry and as such the plaintiff is the exclusive owner in possession of the property. The plaintiff - appellant has contended that the defendants - respondents are not entitled to proceed against the plaint schedule property for the abkari dues, if any, due from Mohankumar under the Revenue Recovery Act. 3. The defendants pleaded that the alleged agreement for sale is not true or genuine and the plaint schedule property was attached as early as on 23.2.1988 for realisation of the abkari arrears due from Mohankumar. O.S. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears wholly or in part, the Collector or the authorised officer, as the case may be, shall enquire into the objection and record a decision before proceeding to attach the immovable property of the defaulter. 7. Section 44 of the Revenue Recovery Act deals with the effect of engagements and transfer by the defaulter. Section 44(1) stipulates that any engagement entered into by the defaulter with anyone in respect of any immovable property after the service of the written demand on him shall not be binding upon the Government. Section 44(2) of the Act lays down that any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrear, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government. Section 44(3) provides that if the defaulter transfers the immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear. The proviso to Sub-section (3) of Section 44 lays down t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 44 of the Revenue Recovery Act and the legislative intent behind the enactment. He also submitted that Sub-section (3) of Section 44 of the Revenue Recovery Act mandates notice before attachment to the defaulter giving him opportunity of being heard and the reasons recorded by the authorised officer in writing before ordering attachment. Therefore, according to him, unless and until these two conditions of issuance of notice to the defaulter to show cause and recording the reasons for the attachment by the authorised officer the provision under Sub-section (3) of Section 44 of the Act cannot be invoked. 11. But in the decision in State of Kerala v. Radhamany (1996) 6 SCC 287) the Supreme Court has held that Sub-sections (1) to (3) of Section 44 of the Revenue Recovery Act are independent by themselves. It is also held that any transfer of immovable property made by the defaulter after public revenue due on any land from him has fallen in arrears, the sale is made with intent to defeat or delay the recovery of such arrears, the sale shall not be binding upon the Government under Sub-section (2) of Section 44 of the Revenue Recovery Act. The Supreme Court has further held that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s due from him. It is also held that prior service of notice of demand of arrears or attachment before sale is not a pre-condition to deny the statutory presumption available under Sub-section (3) of Section 44 of the Revenue Recovery Act. 13. The counsel for the appellant has submitted that the above proposition of law laid down by the Supreme Court is against the very specific provisions of Sub-section (3) of Section 44 of the Revenue Recovery Act without adverting to the proviso to that sub-section. 14. It is seen that the entire Section 44 of the Act is extracted by the Supreme Court in para 4 of the above judgment and the Supreme Court has held that if after the arrears fell due the sale of the land over which recovery is due is effected, Sub-section (2) of Section 44 of the Revenue Recovery Act is attracted and therefore, the sale will not be binding on the Government being a transfer of the immovable property made by the defaulter with intention to delay or defeat the recovery of the arrears and that prior service of notice of demand of arrears or attachment before sale is not a pre-condition to deny the statutory presumption available under Sub-section (3) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. x x x 21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 18. In the decision in Padmasundara Rao v. State of T.N. : AIR 2002 SC 1334 a five Judges Bench of the Supreme Court has observed as follows: 8 A. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree Judges' Bench of the Supreme Court has observed as follows: 7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An 'obiter dictum' as disting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Judges. 23. In view of the above dictum laid down by the Constitution Bench of the Supreme Court the arguments advanced by the counsel for the appellant that the decision of the Supreme Court reported in (1996) 6 SCC 287 (State of Kerala v. Radhamany) cannot be followed since in that judgment the Supreme Court has not noticed or adverted to or considered the mandatory provisions of law laid down in the proviso to Sub-section (3) of Section 44 of the Revenue Recovery Act, is not sustainable. Therefore, so long as the above judgment pronounced by the Supreme Court is not reversed or modified by Larger Bench of the Supreme Court, it continues to be the law of land under Article 141 of the Constitution binding upon this Court and the other courts. Therefore, the decision of the single Judge of this Court reported in 1977 KLT 657 (Raman Kannan v. State of Kerala) and the decisions supporting that view holding against the judgment of the Supreme Court cannot be considered as good law. 24. The Govt. Pleader submitted that in this case all the three sub-sections of Section 44 and not Sub-section (3) of Section 44 alone applies. He submitted that the plaint schedule property was at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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