PARAMESWARAN PILLAI Vs. JOSEPH

JUDGEMENT

(1.) This appeal has been referred to a Division Bench by our learned brother, Vaidialingam, J., as the question involved is not free from difficulty. The question, as stated by our learned brother, is whether an application by a debtor under S.7 or 8 or both of Act 31 of 1958 has to be filed within six months of the commencement of the Act. Putting it differently, if the debtor fails to make the deposit of the first instalment within six months of the commencement of the Act, whether he is precluded from claiming the benefits under the Act.

(2.) In the present case the decree was passed on 29th September, 1954 and after the decree, on 12th October, 1054, Rs. 900/- was paid. According to the debtor the balance that remained to be paid under the Act, which came into force on 14th July, 1958, was only Rs. 975/-, of which Rs. 250/- was deposited on 18th March, 1960 and another sum of Rs. 643.05 was deposited on 13th June, 1960. So that, if the debtor is entitled to the benefits of the Act, the balance yet remaining to be paid is only less than Rs. 100/-. The contention of the decree holder, on the other hand, is that, since no deposit was made within six months of the commencement of the Act as contemplated by S.4 (2) thereof, the debtor is not entitled to any benefit of scaling down under the Act and therefore is liable to pay the entire decree amount. The learned District Judge has accepted this contention of the decree holder and the judgment - debtor has questioned the correctness of the order in this Appeal.

(3.) We have to consider the provisions extracted above to unravel the intention of the legislature regarding the question that has arisen in this case. S.4 (2) indicates the manner of discharge of any debt and it lays down that the; debt is payable in seventeen equal half-yearly instalments, the first instalment becoming payable before the expiry of a period of six months from the date of commencement of the Act. This provision has to be read in conjunction with S.10 (1), which gives the decree holder the right to execute the decree only in respect of the instalment which is in arrear, if the debtor fails to make any of the payment specified in S.4 (2). If the intention of the legislature is to deny the benefits of the Act to a judgment - debtor, who fails to make the deposit of the first instalment within six months of the commencement of the Act, then S.10 (1), which allows the deeree-holder to execute the decree only in respect of the instalment which is in arrear, becomes meaningless. Further, the word 'instalment' in S.10(1) can only mean an instalment contemplated under the other provisions of the Act like S.4 (2), S.8 (3) and S.12(4). Mr. Mathew, the learned advocate of the respondent decree holder, seeks to make a distinction between 'instalment' in S.10(1) and 'instalment' occurring in the other provisions of the Act. He argues that, if the debtor fails to make the deposit Within six months of the commencement of the Act, the debtor loses the benefit of scaling down under the Act, but only retains the benefit of paying the entire debt, without scaling down, in seventeen equal half-yearly instalments. According to Mr. Mathew, if the debtor deposits the first instalment within six months of the commencement of the Act, then the debtor is entitled to a scaling down of the debt and he further entitled is to pay the debt so scaled down in seventeen equal half-yearly instalments. Thus the learned counsel seeks to make a distinction between the instalment contemplated under S.10 (1), which according to him, is one-seventeenth of the entire decree-debt, without any scaling down, and the instalment under the other provisions of the Act, which is only one seventeenth of the debt as scaled down under the provisions of the Act. The argument is certainly attractive but, we are afraid, is not acceptable.