MOHAMED Vs. GHEEVARGHESE

JUDGEMENT

(1.) In execution of the decree in O.S. No. 297 of 1957 dated December 11, 1958, based on a compromise, the petitioner judgment - debtor applied for the amendment of the decree under S.7 of the Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958), as it was before its amendment by the Kerala Agriculturists Debt Relief (Amendment) Act, 1960 (Act 2 of 1961). The decree provided for the payment, by the petitioner to the decree holder respondent, of the principal sum of Rs. 700 and interest thereon amounting to Rs. 65, in instalments as per the provisions of Act 31 of 1958. A contention was raised in the execution court, as to whether the petitioner could claim the benefit of S.7 of that Act, the decree being based on a compromise, which was disposed of in favour of the petitioner by that Court, but was decided against him by the District Judge on appeal. On this point, I feel no difficulty in maintaining the view of the learned District Judge. It was not disputed before me, that a party may contract out of the provisions of that Act, and may give up or renounce the benefits which the Act is intended to confer on him. This principle has been laid down in Mathevan Pillai Kolappa Pillai v. Utthamaravan Sayarimuthu Dhasien, 1943 TLR 409, decided under the provisions of the Travancore Debt Relief Act; other cases laying down the same principle need not be cited. But the petitioners learned counsel attempted to distinguish the present case on the ground, that the petitioner had not expressly given up his rights under Act 31 of 1958 in the compromise. Once the above principle is accepted, it does not make any difference, that the renunciation is implied and not express. On the terms of the decree which has made specific advertence to the provisions of Act 31 of 1958 for payment in instalments, it is difficult to resist the conclusion, that the petitioner, in entering into the compromise, impliedly gave up the benefit of the provisions of Act 31 of 1958, except those which he had specifically bargained for. The petitioner is therefore, debarred from relying upon the provisions, of Act 31 of 1958 as it stood before the amendment, which he had renounced impliedly.

(2.) Reliance was placed on the provision in S.5 as amended by Act 2 of 1961, particularly on clause [i] of sub-s.(1) (a), which enables a debtor to reopen payments which have already been made and appropriated towards interest in excess of the provisions of the Act as amended, in liquidation of the principal pro tanto. This is a new right which came into existence by reason of the amendment Act which was passed long after the date of the decree. The theory of implied renunciation cannot extend to such rights which accrued later. It must follow, that the petitioner has a right under the amended Act to contend, that the excess interest, if any, which he had paid previously, should be applied in reduction of the principal amount of the debt. The learned counsel for the respondent contended, that Act 2 of 1961 being deemed by virtue of S.1 sub-s.(2) thereof, to have come into force on the 14th July, 1958, the renunciation must be understood and defined with reference to the scope of the amended Act; I cannot agree. Renunciation is also a question of fact and cannot be decided as a pure proposition of law.

(3.) The payment of interest is not admitted and has not been considered or determined. The case has therefore to go back to the execution Court for adjudication as to the rights of the petitioner with reference to the benefits which have been conferred on the petitioner by Act 2 of 1991 and which he could not be deemed to have renounced. This Civil Revision is decided accordingly, but without costs.