S GOMATHI ANIMAL Vs. S NALLAMUTHU PILLAI

JUDGEMENT

(1.) THIS appeal is preferred by the defendant in O.S.No.104 of 1978 against the judgment of the learned Subordinate Judge, Madurai in C.M.A. No.198 of 1980 reversing the order passed by the District Munsif, Madurai.

(2.) FACTS which are necessary for the disposal of this appeal are briefly as follows: The plaintiff, the respondent herein, filed O.S.No.104 of 17.4.1978 against the defendant for recovery of money on the basis of an equitable mortgage executed by the defendant on22.2.1975 after borrowing a sum of Rs.2,000 for family expenses. The suit was resisted by the defendant on the ground that the defendant is entitled to the benefits of Ordinance 5 of 1978, which has been now replaced by Tamil Nadu Act 40 of 1978 and contending that the plaintiff is not entitled to half of the principal and half of the interest and that the plaintiff will be entitled to a decree only for Rs.1,000 and interest thereon at 6% p.a. from 14-7-1978, the date of publication of the Act. Since the defendant was admittedly entitled to the benefits of Tamil Nadu Act 40 of 1978 a joint endorsement was made and the suit was decreed for Rs.1000 with interest at 9% p.a. from 22.2.1975 till the date of plaint and thereafter at 6% p.a. till the date of payment and full costs of the suit. Subsequently, Act 40 of 1978 was repealed by Act 40 of 1979. Thereupon, the plaintiff filed I A.No.758 of 1979 under Section 16 of Act 40 of 1979 read with Sec.8(3) for amending the decree, contending that he is entitled to the full principal amount and also interest upto Rs.1000. The said application was resisted solely on the ground that since the decree being a consent decree, it cannot be amended.

(3.) AS regards the power of amending the decree increasing the liability, it is useful to quote the relevant provisions of Sec.16 of Tamil Nadu Act 40 of 1979. "Where before the date of publication of this Act, in the Tamil Nadu Government Gazette, a Court has passed a decree for the repayment of a debt, it shall, on the application of any judgment-debtor who is a debtor within the meaning of this Act, or in respect of a Hindu joint family debt, on the application of the decree-holder within six months from the date of such publication apply the provisions of this Act, to such decree and shall notwithstanding anything contained in the Code of Civil Procedure, 1908 (Central Act V of 1908) amend the decree accordingly or enter satisfaction, as the case may be." It is seen from the said Act that, even in respect of a decree which has been passed prior to the date of promulgation of this Act, notwithstanding anything contained in the Code of Civil Procedure, 1908, the provisions of Act 40 of 1979 would apply and the decree has to be amended accordingly. In this connection, learned counsel for the respondent Mr.Subbiah, drew my attention to two decision of this Court reported in Lakshminaray-ana Reddiar v. T.K.S.Balarama Chettiar, 97 L.W.295 and Rama Reddiar v. Raja Reddiar, 95 L.W.52. In Narayana Reddiar v. T.K.S.Balarama Chettiar, 97 L.W.295. Ratnam J., has held as follows: