NARAYANI AMMA Vs. KOCHU PILLAI

JUDGEMENT

(1.) Petitioner was the decree holder in O.S. No: 56 of 1970 on the file of the Munsiff's Court, Varkala. That suit was filed on the basis of a promissory note executed by the respondent for an amount of Rs. 2, 500/ on 14th August, 1968. The suit was decreed. Thereafter, the decree holder filed E.P. No: 8 of 1972 for execution of the decree. The respondent judgment debtor filed E. A. No 93 of 1978 claiming discharge of the debt as he was a 'debtor' and the debt due was one falling under Act 17 of 1977. That application was opposed by the petitioner decree holder, stating that the application was not maintainable under S.3 of Act 17 of 1977, as the judgment debtor was not a 'debtor' as defined in the Act. It was stated that the judgment - debtor had an annual income of more than Rs. 10,000/ and was having debts exceeding Rs. 3, 000/ . He was said to be one of the judgment debtors in the decree in O. S. No. 193 of 1970 for Rs. 4,000/ . On 5-8-1978, the decree holder filed interrogatories on the respondent judgment debtor. Since the latter had not answered the interrogatories, his application was dismissed on 7-8-1978. However, that was restored to file pursuant to orders of this court in C.R.P. No. 320 of 1979. The respondent judgment debtor answered the interrogatories thereafter, denying question Nos. 1,2 and 3. Thereafter, the judgment debtor was examined as PW-1. In his evidence, he stated that his annual income was only Rs. 1,200/ as pension and Rs. 50/ from his properties. He denied the suggestion that he was the judgment debtor in O. S. No. 193 of 1970 and stated that the decree obtained by one Madhavan, on the basis of a chitty transaction in which he was the surety, had been fully discharged by the first defendant judgment debtor in that decree. The decree holder (petitioner herein) was not examined as a witness. When it was discovered that 'he decree in O.S. No. 193 of 1970, which was produced by the petitioner decree holder to make out that the respondent judgment debtor was not a debtor as defined in S.2 (4) of Act 17 of 1977, did not relate to the respondent. E. A. No. 141 of 1980 was filed by the decree holder seeking to substitute the decree in O.S. No. 193 of 1965 in the place of O.S. No. 193 of 1970 and to amend the affidavit dated 5-8-1978 with which the interrogatories were filed. The execution court rejected E.A. No. 141 of 1980 for inordinate delay, absence of bona fides and lack of provision for amending the affidavit which was already filed about two years ago. It was found on the evidence of PW-1 that he had made out that he was a debtor as defined in S.2(4) of Act 17 of 1977. The debt, admittedly, fell within the definition of S.2(3) of that Act. The court also found that the decree holder had not succeeded in establishing her claim that the debt due to her was exempted from the definition of debt under Act 17 of 1977. With reference to S.9 of that Act, the Court found that the decree holder had not discharged the burden of proof cast on her and that the judgment debtor was not entitled to protection under the provisions of that Act. The Court, therefore, allowed E.A. No. 93 of 1978 declaring that the debt due from the judgment debtor to the petitioner decree holder was discharged under S.3 of Act 17 of 1977. Petitioner challenges that order of the Munsiff in this petition under S.115 of the Code of Civil Procedure.

(2.) Kochu Thommen J., who heard the matter, felt that there was conflict between Ouseph Joseph v. Kochunny Moosa ( 1983 KLT 867 ) and E. K. Prarthana Sangham v. Appunni ( 1984 KLT 702 ) on the question of burden of proof placed on the decree holder under S.9 of Act 17 of 1977. It was also felt that the decision in Georgekutty v. Thomas, 1980 KLT 641 to the effect that amounts already paid by a debtor before the coming into force of Act 17 of 1977, could be adjusted against accrued interest in deciding whether that person was a debtor under S.2(4) of Act 17 of 1977 required reconsideration.

(3.) There are certain basic facts which are not in controversy in this petition. The original debt was Rs.2,500/- on a pronote executed on 14-8-1968. The suit was decreed on 13-6-1970 with 6 percent interest till realisation, with costs amounting to Rs. 575.05. In various instalments commencing from 7-12-1972 and ending with 13-3-1974, the decree holder had paid Rs. 350/-. The accrued interest was Rs 825/-. If the amount paid by the judgment debtor was adjusted against such interest, there would be a balance of Rs 2,795 50 due under the decree, excluding cost, which as stated above, was Rs. 575.05. If this calculation is correct, the amount of debt due at the commencement of Act 17 of 1977 would have been more than Rs. 3,000/-. The question is whether the amount of Rs. 350/- paid by the judgment debtor is liable to be adjusted against interest. If it was not, the judgment debtor would be a debtor under S.2 (4) of the Act.