SANKARANARAYANA IYER Vs. NEELAKANTAN NAMBURI

JUDGEMENT

(1.) IN O. S. 136 of 1113 of the District Munsiff's Court of vadakkanchery a decree was passed against the appellant for amounts due under various claims. One of the claims related to arrears of Michavarom due from 1103 to 1112. IN 11107 ,1108 and 1109 certain quantities of paddy had been paid by the appellant, who was the defendant in the original suit mentioned above and who will hereafter be referred to in this judgment as the defendant, towards the discharge of the arrears of michavarom, and in the plaint filed in 1113 in this case these payments were duly credited and it was only the balance due after these payments that was claimed. After the passing of the Cochin Agriculturists' Relief Act, XVIII of 1114, the defendant sought to discharge the decree as per the provisions of that Act and claimed scaling down of the decree debt in respect of the arrears of michavarom, under S. 17 thereof. IN the proceedings for scaling down, be contended that since, under S. 17 (2) of the Agriculturists' Relief Act, the entire michavarom in arrears for the period prior to 1. 1. 1107 and the arrears of interest outstanding at the commencement of the Act had to be deemed to be discharged and only two third of the arrears from 1. 1. 1107 to the commencement of the Act could be deemed to be the arrears due at the commencement of the Act, the payments made by him during the years 1107,1108 and 1109 should be appropriated towards the discharge of two-third of the arrears from 1. 1. 1107 to the commencement of the Act which alone he was liable to pay under S. 17. The decree-holder took objections to this course, and contended that as the payments in question were made and appropriated towards the satisfaction of the interest and the arrears for the period prior to 1. 1. 1107 even before the agriculturists' Relief Act was passed, no reappropriation could be made. The position that he took up was that, under S. 17 of the Act, it was only the arrears of michavarom for the period prior to 1. 1. 1107 actually outstanding at the commencement of the Act and also the arrears of interest actually outstanding at the commencement of the Act which could be deemed to be discharged, and that it was not the full amount of arrears outstanding on 1. 1. 1107 and the full amount of interest which had accrued till the commencement of the Act that had to be deemed to be discharged. The learned munsiff over-ruled the decree-holder's objections and allowed the defendant's application directing the payments made in 1107 ,1108 and 1109 to be treated as payments towards the arrears from 1107 onwards. On appeal by the decree-holder, the Additional District Judge of Trichur reversed the learned Munsiff's order and held that the payments made before the commencement of the Act could not be reappropriated. Against the order of the additional District Judge the defendant has filed this second appeal.

(2.) THE decisions referred to in the learned Munsiff's order and relied upon by the appellant's counsel as also the decision in narayana Panicker v. Narayani Amma, 35 C. L. R. 125 referred to by the appellant's counsel during the course of his arguments in this Court relate to debts other than pattom and michavarom. THE provisions in the Agriculturists' relief Act for the scaling down of such debts and the provisions in the said act for the scaling down of arrears of pattom and michavarom are entirely different. Ss. 17 (1) and (2) of the Agriculturists' Relief Act read as follows: "17. [1] Subject to the provisions of sub-s. [4] the arrears of michavaram and interest thereon payable by an agriculturist to a land-holder or jenmi at the commencement of this Act, whether, the same be due as such or whether a decree has been obtained therefor, shall be scaled down in the manner specified in sub-s. [2]. [2] All arrears of interest outstanding at the commencement of this Act and the entire michavaram in arrears for the period prior to the first day of Chingam 1107 and one-third of the michavaram in arrears for the period subsequent thereto up to the commencement of this Act shall be deemed to be discharged and only the balance shall be deemed to be the arrears due from the agriculturist at the commencement of this Act". Reading the two clauses together it is clear that the debt that was liable to be scaled down was not the full debt as it stood on 1. 1. 1107 but only the arrears outstanding at the commencement of the Act, that is to say, only the balance outstanding on 26. 12. 1114 out of the debt as it stood on 1. 1. 1107. THE payments made between 1. 1. 1107 and 26. 12. 1114 had extinguished the full debt to the extent of those payments, and what had been extinguished before the commencement of the Act could not be said to be arrears outstanding at its commencement. Exactly the same view was taken by the Cochin high Court in Narayani Amma v. Pappi Amma, 35 C. L. R. 660, which was a case relating to the scaling down of the arrears of pattom. S. 16 of the Agriculturists' relief Act which provides for the scaling down of arrears of pattom and Section 17 which provides for the scaling down of the arrears of michavarom are similar in terms. It was held in Narayani Amma v. Pappi Amma, 35 C. L. R. 660: "section 16 contemplates the scaling down of arrears of pattam as it stood at the commencement of the Act. If there were payments the arrears will be the amount due on the date of the commencement of the Act after setting off the payments. THE words "arrears" and "outstanding" leave no room for doubt that what was intended to be discharged was the interest and a portion of the pattam or michavaram, as the case may be, which remained unpaid for the period specified after appropriation of payments if any made during the period". Regarding the right of the decree-holder to appropriate the payments made between 1. 1. 1107 and 26. 12. 1114 towards the satisfaction of the arrears for the period prior to 1. 1. 1107 it was held in the same case: "that the decree-holder has the right to appropriate the payments if there was no indication with regard to the mode of appropriation by the judgment-debtor, and that this appropriation can be done till the last moment is beyond controversy. Section 61 of the Contract Act recognises the right of the creditor at his discretion to apply the payment under such circumstances to any lawful debt actually due and payable to him from the debtor" "when a payment made by a debtor to his creditor has not been appropriated by the former, the creditor is entitled to elect how he will appropriate the payment up to the very last moment". I therefore hold that the appropriation made by the decree-holder in this case of the payments made in 1107 ,1108 and 1109 towards the interest and arrears for the period prior to 1. 1. 1107 cannot be re-opened and that it is only the arrears of interest and the arrears of michavarom for the period prior to 1. 1. 1107 which was actually outstanding at the commencement of the Agriculturists' Relief Act that can be deemed as discharged under S. 17 of the Act. Regarding the scaling down of the arrears for the period after 1. 1. 1107 there is no dispute. THE order of the lower appellate court is, therefore, confirmed and this second appeal is dismissed with costs. Dismissed.