VARKEY Vs. ABRAHAM

JUDGEMENT

(1.) The assignee decree holder is the appellant. The application for execution filed by him for recovery of balance decree amount as also of the costs decreed to the original decree holder was dismissed by order dated 9.3.1125 passed by the learned District Judge of Kottayam.

(2.) It is admitted by the respondent judgment debtor that this order is wrong in so far as it relates to the costs portion of the claim. The costs awarded by the decree which is dated 11.8.1112 are unaffected by the Debt Relief Act as that Act affects only debts incurred before 23.5.1112. The order passed by the court on 6.4.1117 giving relief under the Debt Relief Act and fixing the amount and instalments payable also excluded from its operation the costs granted by the decree. The costs have not been realised admittedly. The order, therefore, is set aside in so far as it relates to costs.

(3.) The more important question relates to the decree amount. The facts are these: The decree was passed on foot of a deed of hypothecation executed by defendants 1 and 2 whose legal representatives are defendants 3 to 6. It was for an amount of Rs. 6,000 and odd. Before 1116 the equity of redemption over the properties directed to be sold by the decree was sold in execution of the decree against the judgment debtors in O.S. No. 8 of 1110 of the Alleppey District Court. The purchaser standing in the shoes of the judgment debtor filed the application in Edavom 1116 for relief under the Travancore Debt Relief Act (II of 1116). As already mentioned, the Court passed the order granting relief and fixing the instalments. Pursuant to the order passed upon this application, the petitioner purchaser deposited various instalments. For the first and second instalments the amount deposited was in excess of the amount due to be deposited. For the third and 4th instalments no deposit was made. For the 5th instalment though a deposit was made, there was a shortage. There is a controversy as to whether this shortage is Rs. 7 or Rs. 75. If the excess deposited for the first and second instalments be adjusted towards the 5th instalments the deficit would be only Rs. 7. Otherwise it would be Rs. 75. After the date of the 5th instalment, ie., on 11.12.1118 the original decree holder filed a petition for execution stating that payment had been defaulted for two instalments and pursuant to the provisions contained in S. 9 of the Debt Relief Act he seeks recovery of those two instalments by taking processes in execution. On the next instalment due on 30.11.1119 the amount fixed for one instalment as per the order of the court as also Rs. 7 deficit for the 5th instalment was deposited. Thereafter, the instalments were paid regularly until 1120 by the purchaser. Afterwards the sale in O.S. No. 8 of 1110 already mentioned was set aside and the subsequent instalments after setting aside the sale were paid by the third defendant judgment debtor and by 30.1.1125 the last deposit was made. With this last deposit it is admitted that 80 per cent with interest thereon as provided by the Debt Relief Act has been deposited.