MURALI PANDA Vs. KHOLLI NAIKO

JUDGEMENT

(1.) 's appeal arises out of art execution proceeding in which the respondents- decree-holders are seeking to execute a mortgage decree for sale for the amount of Rs. 12,690-1-9. The preliminary decree was passed on 15-8-1927, and was confirmed in appeal on 2-8-1935. The final decree was passed on 4-12-1936. The execution petition was filed on 20-4-1938. On 189-1939, the appellant-judgment- debtor 2 filed an application under Secs.11 and 13, Orissa Money-lenders Act,1939 (Act

(3.) III of 1939), asking for instalments and for scaling down the decree. The application was contested by the decree-holders respondents on the ground that the preliminary decree having been passed before 1-4-1936, the provisions of the Orissa Money-lenders Act relating to the scaling down of the decrees were not applicable. This contention was rejected by the Subordinate Judge on 6-3-1940, by his order of that date which also directed the parties to file their respective statements for the scaling down of the decree by 12-3-1940, and allowed the applicants judgment-debtors three months time to pay the entire decretal amount as found after scaling down. The statements filed by the parties were both found incorrect, and the decree was finally sealed down in accordance with an account prepared in the office of the Subordinate Judge to an amount of Rs. 4463-1-3, carrying interest at 6 per cent. per annum from 15.2-1928, until realisation. The order to this effect was passed on 20-4-1940. At this hearing the appellant pressed for the application of the damdupat rule contained in Section 10, Orissa Money-lenders Act, contending that under this section the total interest up to the date of the final decree must not exceed the principal amount of the loan. The Subordinate Judge rejected this contention, holding that under the terms of the section, the total interest up to the date of the institution of the suit shall not exceed the principal, and as, according to his calculation, the interest up to this date was less than the principal, he did not apply the provisions of Section 10. The present appeal has been filed by the appellant against this order.

(2.) In view of the decision of a Full Bench of this Court in Dandapani Gowda v. Bishun Das A.I.R. 1946 Pat. 110 that Section 10, Orissa Money-lenders Act, does not apply to execution proceedings, the appeal is not pressed. The matter does not end here, however, because a cross-objection has been filed by the respondents-decree-holders raising the question of the applicability of Section 11, Orissa Money-lenders Act.