K V RAMASWAMI AYYAR Vs. RAMAYYA SASTRIGAL

JUDGEMENT

(1.) THIS is a petition raising a question under Section 19 of Act IV of 1938. The decree arose out of a promissory note dated 27 June, 1933 for Rs. 3,000 (Three thousand). When the decree was passed, the amount due for principal and interest was Rs. 3,400 with Rs. 377 (Three hundred and thirty seven) as costs. On 23rd February, 1937 this respondent in execution purchased property of the petitioner (the judgment-debtor) for Rs. 3,406 (Three thousand four hundred and six) for which amount part satisfaction was entered on 17 July, 1937. On 30 August, 1937 a fresh execution petition was filed, claiming Rs. 662--7--6 (Six-hundred and sixty two annas seven and pies six only) as the balance due under the decree. The question is what is the effect of this payment of Rs. 3,406 (Three thousand four hundred and six) towards the decree having regard to the provisions of Secs.8, 9 and 19 of the Act.

(2.) IT seems to us that this payment cannot be regarded as a payment to the debt generally kept in suspense and not appropriated. IT was actually applied in satisfaction of. the decree and a protanto discharge was given. Even if the presumption that it was appropriated first towards interest is not to be drawn when both principal and interest have become merged in a single decree debt there is certainly no presumption that it was appropriated first towards principal. That being so, the payment being more than sufficient to cover all the interest on the debt, the petitioner is not in a position to show that there was on 1 October, 1937 any interest outstanding. He will not be benefited by any reappropriation from principal to costs under the proviso to Section 19. The petition is therefore dismissed with costs.