LEKSHMANA NADAR Vs. PERUMAL PILLAI

JUDGEMENT

(1.) The plaintiff, mortgagee, in this case had obtained a decree for money due under the mortgage. The mortgagor wanted to discharge the debt under S.8, 9 and 15 of the Debt Relief Act. He was making the deposits and, while doing so, he put in an application for delivery of possession of the property to him. It is seen that the fourth defendant was given delivery of possession on 30-7-1117. The debtor, however, continued to deposit the instalments without making the three consecutive defaults. The plaintiff subsequently filed a petition for redelivery of possession, as he was entitled to retain possession of the same till the last pie due under the Debt Relief Act was paid to him. That he was entitled to retain possession of the property till the entire amount due to him was paid is beyond any controversy; and that was the trend of the decisions reported in Parvathi Pilla v. Govindan (XXXII TLJ 931), Krishna Iyer v. Chockalingom Pillai (XXXIII TLJ 583) and Yovan Nadan v. Swamiatha Nadan (XVII TLT 22). Thus, the order allowing the fourth defendant to get possession in 1117 was wrong. A petition to review the order for giving delivery was dismissed; and against that, C. R. P. No. 1219 of 1121 was filed in this Court. The debtor agreed in this Court to pay the entire debt within fifteen days; and so the order of the lower court was set aside and that court was directed to reconsider the whole matter. The debt was not, however, paid within fifteen days; but the plaintiffs petition remained pending in the lower court till it passed the present order, on 23-5-1124.

(2.) The lower court ordered that the fourth defendant was a defaulter as the first two deposits made by him was short by 4 Fs. each, since the amount due for each instalment had been fixed at 574 Fs. in the order dated 29-3-1117. Since this deficiency was not made out, it was held that the debtor had forfeited his rights under the Debt Relief Acts. But it was seen that, while determining the amount which the debtor was to pay under the provisions of S.9, no time limit, within which the deficiency was to be made up was fixed. This was a fatal mistake; and so even if the deficiency was not made up by the debtor, he would not lose the benefits under the Debt Relief Acts. The plaintiff's learned Advocate had also conceded that this portion of the order of the court below was wrong. So that finding is set aside.

(3.) While taking accounts, it was seen that on 3-4-1123 the balance due was 610 Fs. 1 Ch.7 Cash for entering satisfaction of the decree. Since this amount had not been deposited it was contended in the lower court that the debtor would lose all benefits under the Acts. At the time of the argument it was conceded that, if the total amounts deposited by the debtor were taken into account it would be seen that at the time the accounts were settled in 1123 the amount due for 15 instalments had been paid without making any three consecutive defaults till then. If that be so, it was open to the debtor to pay the balance before the last date on which the period of nine years would expire from the commencement of the Debt Relief Act. That is the decision we have given in A. S. 477 of 1951, which we heard along with these two revision petitions. So there is no force in this argument as well.