KRISHNA SONABA ZADE Vs. UDHAORAO HANUMANTRAO PERKI

JUDGEMENT

(1.) THE appellant Krishna had a preliminary decree for foreclosure passed against him in January 1936. He applied to the Debt Relief Court for relief, and that Court passed an order that he was to pay Rs. 24 on 15-4-1941 and the balance of the amount determined due in 16 annual instalments, from 1942 to 1957, of Rs. 100 each on 15th of February each year. He sent a money-order to his creditor Udhaorao on 16-4-1941. He contends that this was refused. On 4-3-1942 Udhaorao put in an application under Section 13(3), Relief of Indebtedness Act, asking for an order that the order of the Debt Relief Court should cease to have effect. On 7th of March Krishna deposited us. 124-3-0. The Deputy Commissioner passed the order asked for by Udhaorao, after an enquiry had been made by the Naib Tahsildar, on 16th July. The application by Udhaorao in consequence of this in the civil Court to have the decree made final was opposed on the ground that the Deputy Commissioner's order was without jurisdiction. This was negatived in the executing Court and also by the Additional District Judge in appeal. A second appeal has now been preferred.

(2.) THE material part of Sub-section (3), Section 13, Relief of Indebtedness Act, runs as follows: ...if two consecutive instalments remain in arrears the Deputy Commissioner, on the application of the creditor, shall pass an order that the order of the Debt Relief Court fixing instalments shall cease to have effect, and the balance remaining due shall be recoverable as if a decree, and in the case of a mortgage, lien or charge as if a final decree, had been passed by a Court of civil jurisdiction.

(3.) THIS contention has been negatived by the learned Subordinate Judge in a very full and carefully reasoned order which was upheld in appeal. It is contended before me that the amount of either instalment could have been recovered as an arrear of land revenue under the provisions of sub-s (1) of Section 13 and that such arrear could be recovered naturally after the date on which it fell due. The argument is fallacious. Under the provisions of: Sub-section (1) if one instalment is not paid the creditor may, if he so chooses, apply within 18 moths of the date of default and the Deputy Commissioner shall recover such instalment as an arrear of land revenue. If, however, he chooses not to make an application as provided in Sub-section (1) and another consecutive instalment falls due he is entitled to make an application under Sub-section (3), and this is what he has done. The wording of Sub-section (3) is imperative and all that the Deputy Commissioner has to do is to ascertain whether two consecutive instalments did or did not remain in arrear, and, for the purpose of this appeal, it is not necessary for me to determine the question whether the vital date is the date on which the second instalment fell due or the date on which the application was made, (the application was made on 3rd March; the second instalment in fact fell due on 15th February) since the amount was not deposited until after Udhaorao's application and obviously was made in consequence of that application. I may note here that there is no question of the powers of the civil Court to consider the question. The order passed is not one passed by the Debt Relief Court at all, and the limitations imposed by Sections 20 and 23 of the Act have no effect, and it is open to the civil Courts to determine whether the Deputy Commissioner had jurisdiction or no, the question depending on the fact whether the instalments did or did not remain in arrears. In my judgment the Deputy Commissioner had no power to grant any extension of time and if he finds, at the very latest at the time that the application is made, a cause of action he is bound to pass the order after having satisfied himself that the arrears did subsist at that time. This the Deputy Commissioner has done. If it were to be held that the arrears did not remain due if they were paid at the end of the enquiry and immediately before the Deputy Commissioner's order was actually passed, the whole object of the Act and the distinction drawn as to the results following the failure to pay one instalment and the failure to pay two consecutive instalments would be obliterated. If two consecutive instalments remain in arrears and the creditor makes the application the order is inevitable. It is only where the creditor chooses on default of one instalment to make an application that the loss stringent provisions apply, and the distinction is deliberate. The result is that the appeal fails and is dismissed with costs. Counsel's fee Rs. 25.