P THANKA NADAR Vs. NESAMONY NADAR

JUDGEMENT

(1.) THIS is a fit and proper case where an order of remand is necessitated in view of the fact that the lower appellate Court entertained an appeal on the basis of Clause (4) of section 96 of the Civil Procedure Code. Section % (4) reads as follows -

(2.) ON the other hand, the case of the defendant as put forward in the written statement is that the defendant.s income from the property is less than Rs. 500 per annum, that the defendant is a small farmer and that therefore, he is entitled to the benefits of Act XXXI of 1976 which wipes out the debt. Hence, the plaintiff is not entitled to claim any amount from the defendant. The defendant is a debtor as defined in the Tamil Nadu Ordinance V of 1978 and he is, therefore, entitled to the benefits thereunder. Hence the suit is liable to be dismissed with costs.

(3.) RELIEFS and costs" Under issue No. 1, the trial Court held that the defendant is not a small farmer and that he is not entitled to the benefit of Act XXXI of 1976, but the defendant is entitled to the benefit of Ordinance V of 1978, which was passed into Act XL of 19 78. Under Issue No. 2, the trial Court held that the plaintiff is entitled to claim interest when the moratorium Act was in force. Under Issue No. 3 the trial Court held that the suit is maintainable in view of the findings on issues 1 and 2. Under Issue No.4, the trial Court found that the suit had to be decreed for half of the principal mount, namely Rs. 500 with interest at 9 per cent from the date of suit promissory note, i.e., 6th May, 1974, till the date of decree and subsequent interest at 6 per cent on the principal sum of Rs. 5,000 from the date of decree till the date of realisation with proportionate costs. Aggrieved by the above decision of the trial Court, the defendant has preferred A. S. No. 20 of 1979 before the learned Subordinate Judge, Padmanabhapuram. On the point whether the defendant-appellant is entitled to get the benefit under Act XXXI of 1976, the lower appellate Court held that the defendant appellant before the Court is not liable to pay any amount and that as the appellant had succeeded on a technical ground, the lower appellate Court directed both parties to bear their respective costs.