JOSEPH ANTONY Vs. PALAI CENTRAL BANK LTD

JUDGEMENT

(1.) THE decree under execution, a compromise decree dated 24th November 1958 says that the debt is to be repaid in 17 instalments in accordance with Act 31 of 1958 though the debt in question was one coming within the exclusion in S. 2 (c) (xi) of the Act the proviso to this clause as it then stood said that the debt could be repaid in instalments as provided in s. 4 (2) i. e. , in 17 equal half yearly instalments. THE fact that by reason of the amendment introduced by Act 2 of 1961, S. 1 (2) whereof says that it shall be deemed to have come into force 14 71958, (though it was actually enacted only on 30 11961) the number of instalments is reduced to eight does not and cannot alter the fact that the decree provides for 17 instalments. THE fiction in section I (2) does not go to the extent of saying that the compromise and the decree pursuant thereto must be deemed to have said "8" when they actually said "17 merely because they referred to Act. 31 of 1958. And obviously the Act they had in mind was the Act as it actually stood at the time, not the Act as it was subsequently amended though with retrospective effect. THE courts below were therefore wrong in reducing the number of instalments to eight. THE decision in Mohammed v. Gheevarghese (1961 KLT. 542)relied upon by the lower appellate court is the converse case of the judgment-debtor claiming the benefits of the retrospectively amended Act notwithstanding a compromise in accordance with the unamended Act. In such a case it is not as if the compromise is deemed to be in accordance with an Act not actually in existence when the compromise was made the fiction as I said does not go to such lengths but it is that the judgment-debtor can, under S. 4 of the Act, claim the benefits of the amended Act notwithstanding anything contained in any law or contract (and a compromise is a contract) or in any decree or order of court, something which the creditor cannot do. Nor, I should think, would the appellant decree-holder be entitled to seek an amendment under s. 7 of the Act since the decree here was based on compromise, 17 instalments being allowed by the compromise and not by reason of the court applying the provisions of the Act.

(2.) I allow the appeal with costs, set aside the orders of the courts below, and hold that the appellant judgment-debtor is entitled to the benefit of the 17 instalments given by the decree. Dismissed.