CHACKO Vs. FRANCIS KATHANAR

JUDGEMENT

(1.) The only contention that can be urged in this second appeal on behalf of the defendant appellant is that he is entitled to relief under the Debt Relief Act II of 1116. The learned counsel for the appellant contends that the explanation to S. 3 would apply to the present case. The facts are that there was a decree debt against a brother of the defendant. The decree was passed in 1101. The total amount of the debt was Rs. 1200. When the decree was being executed, the defendant agreed to execute the suit hypothecation bond in favour of the plaintiff, who was the Mylakombu Roman Catholic Church. At that time it was agreed that it would be sufficient if the hypothecation bond was executed by the defendant for Rs. 800. The defendant executed such a document on 18.6.1115 and the balance under the decree was, according to the terms of the agreement between the parties, given up by the decree holder. Provision was made in the hypothecation bond for discharging the debt in five years in equal installments. The rate of interest provided for was 6 per cent simple interest. Nothing was paid by the defendant under this document and when the suit, from which the second appeal arises, was filed against him for recovering the total amount due under the bond, he raised as one of his contentions the plea that is urged in this second appeal. The learned District Munsiff who framed an additional issue on this question has found against the defendant. In the judgment of the lower appellate court, nothing is said about this contention of the appellant Here, in this Court, Mr. Narayana Pillai, the learned counsel for the appellant, argues that this is really a case in which the decree debt of 1101 has been "renewed, included or merged" in the suit hypothecation bond and that it would attract the provisions of the explanation to S. 3 of the Debt Relief Act. We are not satisfied that this contention is well founded. It is really a case of novation, where the original debtor was given up by the creditor and the present defendant undertook the liability for a portion of the debt. The transaction can be said to be renewed only when it is done by the same debtor. The amount of the decree, viz., Rs. 1200/- cannot be regarded as being "included or merged" in the hypothecation which was only for a smaller amount, viz., Rs. 800.

(2.) In these circumstances, we are not prepared to accept the contention urged in the second appeal by the appellant's learned counsel.

(3.) The appellant's learned counsel wanted to raise another question regarding discharge of the liability but in view of the fact that that was not placed before the courts below, we hold that it is not open to him to urge that contention now. In the result, the second appeal must be dismissed with costs.