J U D G M E N T

This appeal is against the judgment and decree dated 19.01.2021 in AS No.15 of 2018 of the Sub Court, Kattappana (hereinafter referred to as 'the first appellate court') confirming the judgment and decree dated 28.02.2018 in the suit filed by the plaintiff as O.S.No. 344/2015 on the file of the Munsiff's court, Kattappana (hereinafter referred to as 'the trial court') for declaration and consequential injunction restraining the defendants from proceeding against the plaintiff as per Ext.A1 notice issued at the instance of respondents 1 and 2. The suit was dismissed by the trial court holding that the suit is barred under Section 72 of the Kerala Revenue Recovery Act, 1968 (hereinafter referred to as 'the R.R.Act'). It was further held that statutory notice under Section 139 of the Kerala State Housing Board Act, 1971 (hereinafter referred to as 'the Act') was not issued to the first defendant and the suit ought to have been rejected. The first appellate court agreed with the finding of the trial court and dismissed the appeal.

2. It is averred in the plaint that the plaintiff availed a housing loan of Rs.2,50,000/- from the first defendant by mortgaging his property having an extent of 10 ares 12 sq.ms. of land at Rajakumari after deposit of title deeds in favour of the first defendant. According to the plaintiff, he paid the entire amount due to the first defendant. He would state that even after payment of the entire amount, the document was not returned. While so, on 3.9.2015, the plaintiff received a notice dated 17.8.2015 stating that the property of the plaintiff was under attachment and the property would be sold in public auction on 29.9.2015 under the Revenue Recovery Act for a sum of Rs.8,50,469/-. The second defendant is styled therein as an authorised officer. No amount is due to the first defendant from the plaintiff and the claim is barred by limitation. Hence, the plaintiff seeks a declaration that no amount is due to the defendants from the plaintiff and also consequential injunction restraining the defendants from proceeding with the notice.

3. In the written statement filed, the defendants 1 and 2 contended that the suit is barred under Section 72 of the R.R.Act. According to the defendants, the plaintiff was a defaulter and the first defendant initiated revenue recovery proceedings within the period of limitation. It was contended that written demand was issued to the plaintiff in accordance with the Revenue Recovery Act and the present suit is barred under Section 72 of the said Act.

4. Heard Sri.Grashious Kuriakose, the learned Senior counsel for the appellant.

5. Admittedly, the plaintiff obtained a loan for an amount of Rs.2,50,000/- from the first defendant by depositing his title deeds. According to the plaintiff, he repaid the entire loan amount as agreed and pleaded discharge. No document was produced by the plaintiff to prove that he discharged the debt as contended by him. According to him, Ext.A1 notice was issued on 17.8.2015, stating that the property of the plaintiff would be attached and sold in public auction on 29.9.2015 purportedly under Section 46 of the R.R.Act. It is a fact that no proceedings under Section 46 of the R.R.Act can be issued without resorting to Sections 7 and 34 of the R.R.Act. In other words, notice under Sections 7 and 34 of the R.R.Act is a condition precedent for initiating action under Section 46 of the R.R.Act. In the case at hand, the plaintiff challenged the revenue recovery proceedings against the Kerala State Housing Board without the junction of the Government in the party array. The notice under the R.R.Act was issued by the competent authority under the R.R.Act. The suit was filed seeking to restrain the defendants from initiating revenue recovery proceedings without the junction of the State. It was done presumably for the reason that had the State been in the party array, it would have been very easy for the State to contest the proceedings p