VARKEY Vs. MATHEW

JUDGEMENT

(1.) Assuming, without deciding, that the respondents contention that the appellant judgment debtors application falls partly within S.8 of Act XXXI of 1958 is well founded, in so far it was for an amendment of the decree against him under S.7 of the Act there is nothing in the Act, requiring him to deposit any of the instalments due in accordance therewith before there can be an adjudication. The dismissal of the application in entirety on the ground that only two of the four instalments that had fallen due had been deposited was therefore clearly wrong. The dismissal is therefore set aside in so far as the prayer for an amendment of the decree under S.7 is concerned and the application so far as it relates to that prayer is remanded to the lower court for decision according to law.

(2.) There will be no order as to costs in the appeal.

(3.) The objection taken that no appeal lies would appear to be well founded; but that is of no avail since, if no appeal lies, a revision under S.115 of the Code will, and, this seems to be so clearly a case of a failure to exercise a jurisdiction vested by law that I am prepared to, and do, make the above order in exercise of my powers of revision.