MAIJA AMMAL Vs. S P MABOOB MOHAMMED DIED

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned District Judge, Nagapattinam in CM. A.No.32 of 1980 confirming the judgment of the Subordinate Judge, Nagapattinam in I.A.No.626 of 1979 in O.S.No.97 of 1974.

(2.) THE brief facts leading upto this appeal are as follows: THE appellant herein filed a suit against the respondent- defendants on the fact of a mortgage bond and obtained a decree giving benefit of the Act 40 of 1978. Since the Act has been repealed by the Act 40 of 1979, he filed an application in I.A.No.626 of 1979 to amend the decree under Sec.16 of the said Act. THE first defendant viz., the first respondent opposed the said application and in the counter inter alia it is contended that the Act 40 of 1979 cannot be applied to increase the liability of the respondents and it was intended to further scaling down the debt, the increase of debt of 1 1/2 time over the principal amount and there was no question of scaling down under the Act 40 of 1979. Upholding the contention of the respondents the amendment petition was dismissed. Aggrieved by the same he preferred an appeal and he was unsuccessful. Hence, this second appeal. This was admitted on the following substantial questions of law: 1. Whether the courts below are wrong in holding that the liability of the judgment-debtor is sought to be increased under Act 40 of 1979? 2. Whether the courts below are wrong in coming to the conclusion that Sec.8(3) of Act 40 of 1979 is a bar to the maintainability of the application under the provisions of Act 40 of 1979?