KRISHNA KURUP SANKARA KURUP Vs. MATHEW JOSEPH

JUDGEMENT

(1.) This appeal is from an order of the District Judge of Alleppy allowing the first defendant in O.S. No. 202 of 1953 to discharge the debt covered by the decree in accordance with the provisions of the Kerala Agriculturists Debt Relief Act (XXXI of 1958. The decree which was for recovery of money due under a simple mortgage was passed on 12-8-1954 on the basis of a compromise petition. The right of the first defendant to obtain relief under Act XXXI of 1958 was not disputed and the controversy was about the manner in which the debt was to be scaled down. The learned District Judge accepted the method of computation adopted by the first defendant, and the decree holder has therefore preferred this appeal. The Division Bench which heard the appeal referred the case to a Full Bench for an authoritative decision.

(2.) The only point now in dispute is whether the amount adjudged by the decree is to be treated as principal for the purpose of ascertaining the balance of the debt payable under the provisions of the Act or whether the principal should be taken as the original sum lent, notwithstanding the decree. It is necessary to refer to some of the provisions of the Act for determining this question.

(3.) The point pressed by counsel for the appellant is that the amount adjudged by the decree should be treated as principal for calculating interest under S.5 and that payments made by the judgment debtor before decree and appropriated by the decree holder should not be taken into account. In other words the argument is that the decree should not be reopened for determining the amount payable under the Act. This is sought to be supported by the definition of principal. It is urged that while renewals of a debt are to be ignored in ascertaining the principal, there is no express provision to ignore a decree into which the debt might have merged before the commencement of the Act. It is true that there is no express provision in respect of decrees similar to renewals but this is unnecessary in view of the first part of the definition that principal means the amount originally advanced, together with such sum, if any, as has been subsequently advanced. The original sum advanced remains the same whether a decree has been passed or hot, for its recovery. S.5 (1) (a) (ii) provides that not more than one-half of the principal shall be deemed payable or to have been payable towards interest which accrued due till the commencement of the Act. Here again, the definition of Principal comes into effect, and only one-half of the original sum lent will be deemed payable or to have been payable towards interest. S.7 enables the court to amend the decree in conformity with the earlier provision. It further provides that in case the principal and interest amounting to one-half of the same has been paid before the commencement of the Act the court should enter satisfaction of the decree. This has to be done notwithstanding anything in the Code of Civil Procedure. If the argument advanced on behalf of the appellant, that the decree cannot be reopened, is correct, it is impossible to record satisfaction of the decree when the original sum lent and interest not exceeding one-half of the same is paid. It is therefore clear that the principal remains the original sum lent notwithstanding the fact that a decree has been passed for recovery of the same. It follows that the decree can be reopened to ascertain the principal for the purpose of payment under the Act or for recording satisfaction of the decree.