MANNANDA Vs. MATHAI

JUDGEMENT

(1.) The sixth instalment due on the decree in accordance with sub-s.(2) and (3) of S.4 of Act 31 of 1958 (the Act admittedly applies so far as the appellant 1st defendant judgment debtor is concerned) fell due on 14-7-1961 and it is not disputed that none of the instalments was paid by then. The contention of the appellant before the lower court as well as in her memorandum of appeal here was that the amount due on the six defaulted instalments having been subsequently recovered in execution, the forfeiture in the proviso to sub-s.(5) of the section cannot operate. This is altogether unsustainable. As the body of sub-s.(5) itself indicates, when any instalment is not paid on the due date there is default and the fact that there has been a subsequent payment does not erase the default though it might be that, in certain circumstances, acceptance of an overdue instalment not I should think recovery in execution may amount to a waiver of the forfeiture by the decree holder. It is however contended, for the first time in the course of the argument before me, that on 3-8-1961, after forfeiture had taken place, the decree holder had made an application for execution in respect of only the sum of the six defaulted instalments although under the proviso to sub-s.(5) of the section the entire decree amount had become payable forthwith and that that amounted to waiver of forfeiture. Therefore, his present application for the entire balance due is not maintainable. But this plea, which is in part at least a plea of fact, was not taken before the lower court, not even in the memorandum of appeal, and I am unable to countenance it. The question whether in the light of the decisions in Varkey v. Abraham 1951 KLT 85 and John v. Varghese 1951 KLT 281 , this alleged conduct of the decree holder can affect the liability of the appellant under the proviso to sub-s.(5) of the section to pay the whole debt forthwith, does not therefore arise.

(2.) I might add that S.10(1) of the Act seems to entitle a decree holder to execute his decree in respect of the instalments in arrear under the provisions of sub-s.(2) and (3) of S.4, notwithstanding that the judgment debtor has incurred the forfeiture under the proviso to sub-s.(5). Therefore the question of applying the decision in ILR LVII Bombay 468 so as to disentitle the decree holder to make his present application having previously applied for the execution of a portion only of the decree amount does not arise.

(3.) It is next argued that, in any case, the appellant has not forfeited the benefits of S.5 of the Act. That is undoubtedly so since the forfeiture under the proviso to sub-s.(5) of S.4 is only of the benefits of sub-s.(2) and (3) of that section. Therefore, in determining the amount still due from the appellant the court below will apply the provisions of S.4.