KUNJUNNI PILLAI Vs. ANTONY SEBASTIAN

JUDGEMENT

(1.) The short question that arises for consideration in this C.R.P. at the instance of the decree holder and that has been raised before me by his learned counsel, Mr. P. Subramonian Potti, is as to whether the decree holder is entitled to collect the entire decree amount when once there has been a default committed by the judgment debtor in the payment of six consecutive instalments as provided in the proviso to sub-s.5 of S.4 of the Act.

(2.) Mr. Govindan Nair, learned counsel for the judgment debtor urged a contention that there is no enquiry or finding by the two subordinate courts as to whether in this case, the decree holder has as a matter of fact established that his client has committed default in the payment of six consecutive instalments and, therefore, that question will have to be first directed to be investigated by this court. In my view, this contention cannot be accepted because it is seen from the memorandum of grounds that have been filed by the decree holder before the lower appellate court challenging the order of the learned counsel and particularly ground No. 3 that defendants 2 and 3 who are agriculturists have committed default in payment of six consecutive instalments and, therefore, the decree holder is entitled to collect the whole debt at one and the same time. No doubt, there is a further averment in ground No. 4 to the effect that the judgment debtors have not paid any amount whatsoever.

(3.) Why I am adverting to this aspect is that a specific plea has been raised by the decree holder that the judgment debtors have committed default in the payment of six consecutive instalments.