STEPHEN CHACKO Vs. NARAYANA AIYER GANAPATHY AIYER

JUDGEMENT

(1.) A short but interesting question under Act XXXI of 1958 is raised in these second appeals.

(2.) The appellant in these cases is a debtor under two hypothecations; and the creditor, the respondent, filed two original petitions under S.8 of Act XXXI of 1958, which gave rise to these second appeals. The petitions were for fixing the amounts payable under S.8; but, when the petitions were filed, more than six instalments out of the seventeen as contemplated by S.4(2) had already fallen due and had also been defaulted. The question for consideration is whether an application can be filed under S.8 after six or more instalments have fallen due and have been defaulted.

(3.) The counsel of the appellant argues that S.8(1) provides for the filing of an application either by a debtor or by a creditor for an order fixing the amount payable under S.4. He argues further that if six instalments have fallen due and have been defaulted, the debt becomes impossible of payment under S.4, with the result that thereafter no application will lie under S.8 for fixing the amount payable under S.4.