GOPALAN NAIR Vs. KESAVANKUTTY PANICKER

JUDGEMENT

(1.) The petitioner is the judgment debtor in O.S. No. 141 of 1975 on the file of the Munsiff, Sherthallai When the decree was sought to be executed, he claimed benefits under Act 17 of 1977, for short 'the Act'. The claim was opposed by the decree holder on the ground that his debt exceeded Rs. 3000/-. Reliance was placed on Exts. B1 and B2, two documents in favour of the Thaikkattusseri Service Cooperative Society Ext. B1 is a chitty security bond executed by the petitioner. Ext. B2 is a possessory mortgage deed executed by the petitioner and his son. The executing court upheld the objection of the decree holder that the liabilities under the above documents were debts owed by the petitioner. This order is challenged in this revision petition.

(2.) It is pointed out by the petitioner that under the above documents be need pay the amounts secured only in instalments and as there was no default by him, the transactions do not evidence any debt so as to disentitle him from claiming relief under the Act.

(3.) The argument has force to the extent it relates to the chitty security bond. A chitty security bond is executed under the terms of a chitty Vaimbu and evidences an agreement executed by a subscriber to a chitty who has woo in the draw or has succeeded in the auction held under the terms of the chitty contract, undertaking to pay the future subscriptions due from him on the due dates and providing security for such payment. A foreman becomes entitled to sue on the bond only if the subscriber commits default to pay the subscriptions. In other words, a chitty security bond can be treated as a document evidencing a debt only it and when default is committed by the subscriber. Once the subscriber commits default in the payment of subscriptions, the foreman becomes entitled to recover the whole of the balance amount secured under the bond in a lump as provided in the bond and such balance amount becomes a debt payable by the subscriber which can be taken into account in deciding whether the subscriber is a debtor under the Act. The executing court should have enquired whether there was default on the part of the petitioner prior to the commencement of the Act and the extent of the liability outstanding when the Act came into force.