KUPPAMUTHU PILLAI Vs. RAMALEKSHMI

JUDGEMENT

(1.) The plaintiff decree holder is the appellant. The question raised in this second appeal is one of limitation. The decree in the case was passed on 11.7.1115. On 24.7.1116 the first defendant filed a petition under S.8, 9 and 15 of the Debt Relief Act (Act II of 1116 of Travancore) and prayed that she may be allowed to pay up the decree-debt in instalments and that the amount of the debt for such payment may be fixed by the Court. After paying a few instalments at the rate admitted by the defendant petitioner, she defaulted to make further payments. The Debt Relief Petition itself was dismissed on 6.4.1118. The decree holder filed the first execution petition on 11.1.1122. To this execution petition the first defendant raised an objection that the decree had become barred by limitation. The execution Court overruled this objection and held that the instalment payments made under the Debt Relief Petition have kept the decree alive and that therefore there was no bar of limitation for the execution of the decree. On appeal by the defendant, the lower appellate court reversed the decision of the execution and held that the decree has become barred by limitation. Hence this second appeal.

(2.) During the pendency of the Debt Relief Petition the first defendant had made instalment payments into Court on three occasions i.e., on 27.7.1116, 26.1.1117 and 20.7.1117. The two instalments due in the year 1118 were defaulted and the Debt Relief Petition itself happened to be dismissed on 6.4.1118. Subsequently the 1st defendant is stated to have made one more payment out of court to the decree holders Advocate on 31.1.1119. This payment is denied by the 1st defendant. But on a consideration of the evidence adduced by the decree holder, the lower courts have concurrently found that the alleged payment on 31.1.1119 is true. We do not see any reason to interfere with that finding in this second appeal.

(3.) The position taken up by the decree holder is that the execution petition filed by her on 11.1.1122 being within three years of 31.1.1119 is within time. It is contended that the decree holder could not execute the decree while the judgment debtor was making payments under S. 8 and 9 of the Debt Relief Act. S. 10 of the Act lays down that the execution of a decree shall not be in contravention of S.8 and 9 of the Act. S. 9 prescribes the manner in which the decree debt should be reduced and discharged by making payments in instalments. Cl. 3 of that section lays down that only when the judgment debtor has committed default in the payment of three consecutive instalments or the last instalment, the decree holder will be entitled to take out execution for the balance of the amount remaining due under the decree and that in other cases the decree holder could take out execution only for realising the defaulted instalments. On the strength of these provisions it is argued on behalf of the decree holder that when the first defendant made the instalment payment on 31.1.1119, the earlier two instalments alone had been defaulted and as such the decree holder could take out execution for realising the entire amount due under the decree. This contention would have prevailed if the payments made on 31.1.1119 was made and accepted as an instalment payment under S. 9 of the Debt Relief Act. The decree holder could get the benefit of the suspension of the execution of the decree by virtue of S. 10 of the Debt Relief Act only when valid payments under S. 9 are being made by the judgment debtor. Such valid payments could be made and accepted by the mutual consent of the parties or under orders of Court. The payment made and accepted on 31.1.11119 does not come under either of these categories. The decree holder had never conceded the 1st defendants right to have the decree-debt discharged by making instalment payments under S. 8 and 9 of the Debt Relief Act. In fact the decree holder had gone to the extent of contending that the decree-debt in this case was outside the scope of the Debt Relief Act. She had filed objections to the 1st defendants Debt Relief Petition and had contended that she had no assets other than the amount due under this decree and that therefore the 1st defendant was not entitled to have this debt discharged by making concessional payments under S.8 and 9 of the Debt Relief Act. The decree holder had also contended that the first instalment deposited by the 1st defendant was not proper and sufficient. It was while these objections were pending consideration that the Debt Relief petition was dismissed for default on 6.4.1118.