ANUMOLU TIRUPATIRAYOLU (DIED) Vs. KALURI VENKATA SUBBA RAO

JUDGEMENT

(1.) This is an appeal by the decree-holder in O.S. No. 120 of 1931 against the order of the Principal Subordinate Judge of Guntur scaling down the decree debt in a manner which the appellant considers to be unduly favourable to the judgment-debtor.

(2.) The point in dispute between the parties is a simple one. A promissory note was executed in renewal of two earlier promissory notes, Exs. P-1 and P-2, in which a further sum of Rs. 5,000 was advanced, making a total of Rs. 15,000 due by defendants 1 and 2 and one P. Prakasa Rao. On the 12 March, 1931, an arrangement was entered into between the creditor and the debtors whereby Prakasa Rao undertook half the liability under the note, which amounted to Rs. 9,700, and for that amount he executed a mortgage bond in favour of the creditor. The defendants executed the suit promissory note for the other Rs. 9,700. The question arising in this appeal is whether we must regard the splitting up of the old debt on the 12 March, 1931, as a creation of two new debts, in which case the 12 March, 1931, will be the earliest date to which the judgment-debtors would be entitled to go back to reopen the decree debt, or we must regard the two new debts as continuations of the old one. A third alternative suggested was that the Rs. 9,700 paid by Prakasa Rao should be regarded as a partial discharge of the debt then existing. In the two last cases, the judgment-debtors would be entitled to go back to the 10 May, 1925, the date of execution of Ex. P-1, the original promissory note.

(3.) We consider that this question is settled by authority. In Ramasubbier V/s. Rama Aiyar (1941) 1 M.L J. 39 there was a division in the family of the creditors and the debt divided between the two members of the family in unequal shares, the debtors executing fresh promissory notes in favour of the two members of the family. Patanjali Sastri, J., in the judgment delivered by him on behalf of the Bench, stated: ... it seems to us that the Explanation to Section 8 requires that the debt must continue in substance to be the same though the amount and the parties under the various documents given as vouchers for it need not be strictly identical. This requirement cannot be regarded as satisfied when the debt is divided among the heirs of the creditor and the debtor executes a separate instrument for a part of the debt in favour of each of such heirs. We are therefore of opinion that the promisstsry notes executed by the debtors separately...cannot be said to represent a renewal of the original debt or its inclusion in fresh documents within the meaning of the Explanation.... This decision was followed by the same Bench in Venkateswarlu V/s. Venkataraju (1941) 1 M.L.J. 718 and has been the recognised law relating to this type of transaction." These two cases were sought to be distinguished from the present case by the circumstance that there the debt was divided between two creditors, whereas here the debt was divided between two debtors. We are unable to see how that difference affects the reasoning of the learned Judges in the passage quoted above.