KADUTHA KUNJ APPY Vs. KOCHUKUMARAN DAMODARAN

JUDGEMENT

(1.) The short point for decision in this Second Appeal preferred by the decree holders is whether the respondent (defendant 6) had forfeited his right to the benefit conferred by the Debt Relief Act by reason of default being made in the payment of three consecutive instalments. The dispute is whether the 8th instalment amount was paid in time. Two previous defaults (4th and 6th instalments) are admitted.

(2.) The 8th instalment fell due on 31.1.1121 which day happened to be a public holiday. On the next working day, i.e. on 1.2.1121 the respondent applied to the Court for a chalan being issued to him for depositing the 8th instalment amount. It would appear that the Court issued the chalan on the same day but it was too late for remittance of the money to the treasury that day. The amount was paid into the treasury on the next day (2.2.1121) itself. Sometime later, on 7.4.1121, the decree holders proceeded to execute the decree on the basis defendant 6 had become disentitled to the benefit of the Debt Relief Act as he had inclusive of the 8th instalment made default for three instalments. The court of execution overruled the objection and allowed execution to proceed as sought for by the decree holders. The lower appellate court reversed that decision and upheld defendant 6s objection. Hence this second appeal by the decree holders.

(3.) The lower appellate court reversed the decision of the Munsiff on the authority of the decision reported in 26 TLJ 989. There under the terms of a compromise decree the amount agreed upon was to be paid on certain specified dates, and on default the plaintiff was to become entitled to execute the decree for the whole of the plaint amount, the interest and costs claimed in the plaint. The instalment amounts were to be paid direct to the plaintiff on the due dates or to be paid into court. The last instalment fell due on the last day of the midsummer vacation of 1109 and the money being tendered to the plaintiffs agent on the next day he refused to accept the same day the judgment debtor applied to the Court for the issue of a chalan to deposit the money into the treasury. The chalan was however issued only on the next day and the money was deposited on that day. The question arose whether the payment was made in time. The court held that the delay to issue the chalan was caused by the Court and that the debtor cannot be made to suffer for it. The payment was hence held to be valid. We are unable to appreciate how a different rule can be applied for the decision of the case on hand.