CHACKO Vs. SUBRAMONIA IYER

JUDGEMENT

(1.) This civil revision petition has been referred to a Division Bench for decision as it involves the question whether a decree for cash into which a loan in kind has merged before the date of the Kerala Act XXXI of 1958 can be reopened and amended in terms of Explanation II to S.2 (c) of the said Act.

(2.) The decree in this case was obtained on a simple mortgage deed of 7-4-1111 executed by the first defendant in favour of the decree holders deceased father. The debt covered by the mortgage was a sum of Rs. 768/- and 1792 paras and 3 1/4 edangalies of paddy. There was provision in the deed for capitalising interest in arrears and for payment of interest on such capitalised sum. The plaintiff valued paddy at Re. 1 As. 13 Ps. 6 in the plaint and sued for recovery of such value. The suit was decreed on 1-4-1952 valuing paddy at the rate adopted in the plaint. When the decree holder took out execution, the first defendant applied under S.7 of Act XXXI of 1958 (Kerala) for amendment of the decree according to the provisions of the Act. According to the first defendant, paddy was to be valued at the rate prevailing on the date of transaction, i. e., 7-4-1111, and the decree had to be amended accordingly. This was disallowed and the first defendant has therefore preferred this petition.

(3.) The only point arising for decision is whether paddy should be valued at the price prevailing on the date of the mortgage deed. The appellant relied on the definition of debt in S.2(c) of the Act and Explanation II under the section. The relevant provisions may be extracted: