Narayana Reddiar v. M. N. Pattar — 1949 DIGILAW 62 (KER)

JUDGMENT : P.I. Simon, J. The judgment-debtor is the appellant and this appeal is directed against the order of the lower court repelling his contention that the decree stood discharged by payments made by him from time to time. Although there was no application for permission to repay the debt in instalments under the provisions of the Debt Relief Act, it was contended that such an application was unnecessary under law and that the amount recoverable under the decree must be subject to the concessions granted under the Act. The decree-holder contended that the debt itself did not fall, under the purview of the Debt Relief Act and that the payments made by the judgment-debtor were in obedience to the orders of the execution court in the course of execution proceedings and were not made under the provisions of the Act which granted certain concessions to debtors generally. The decree was passed on 8.6.1113 for the recovery of the amount due under a hypothecation bond dated 23.10.1109. The decree-holder took out execution and on 14.6.1115, the judgment-debtor paid Rs. 50/- to the decree-holder and prayed for two months' time to pay the balance amount due under the decree. The time asked for, was granted on the consent of the decree-holder. The decree-holder again applied for execution and the decree schedule properties were duly proclaimed for sale. The sale was posted to 5.8.1116 and on that day, the judgment-debtor applied for an adjournment of sale on payment of Rs. 50/- to the decree-holder. The sale was adjourned to 16.8.1116 and the judgment-debtor obtained a stay of the sale on payment of Rs. 157-14 chs. 0 to the decree-holder. The sale came up again on 27.11.1116 and on the application of the appellant, the sale was adjourned to 22.12.1116 and he was directed to deposit 1/8th of the decree amount that remained due. An amount of Rs. 199 was deposited on 22.12.1116 and the sale was sayed. The Debt Relief Act came into force early in the year 1116. The appellant filed an application before the execution court on 31.12.1116 stating that the balance of the amount due under the decree was Rs. 1390 and that he may be permitted to discharge the debt by payment in instalments of Rs. 50/- per month. The Debt Relief Act came into force early in the year 1116. The appellant filed an application before the execution court on 31.12.1116 stating that the balance of the amount due under the decree was Rs. 1390 and that he may be permitted to discharge the debt by payment in instalments of Rs. 50/- per month. There was no prayer in it for the granting of the concessions due to him under the Debt Relief Act. The execution court ordered on 9.4.1117 that if he deposited one-sixth of the amount due within two weeks he will be granted some time for the payment of the balance due under the decree. An amount of Rs. 233 was deposited on 23.4.1117. The decree-holder however applied for execution on 28.4.1117. The appellant then deposited Rs. 50/- on 9.7.1117 and the court ordered that the further amount required to make up a sixth of the amount due should be deposited within fourteen days. An application was filed thereafter for extending the time for payment by two months and time was granted till 3.8.1117. He deposited Rs. 50/- on 3.8.1117 and it was ordered on that day that he should deposit Rs. 463 on 9.10.1117. A deposit of Rs. 100 was made on 9.10.1117 and the court ordered that the appellant should deposit the balance of Rs. 363 within a month thereafter. On 10.11.1117 the appellant deposited one hundred rupees and he applied for two months' time to deposit the balance. A month's time was granted and the case was posted to 11.12.1117 when there was an application for extension of time by three months. An extension of time till 11.1.1118 was granted. The appellant did not deposit any amount on that date. He however paid into court Rs. 66-14-0 on 25.1.1118 and prayed for 6 months' time to pay the balance. This application was rejected on 17.3.1118. There were subsequent deposits of Rs. 100/- on 24.3.1118 of Rs. 50 on 18.5.1118, of Rs. 50/- on 26.6.1118 of Rs. 33 on 24.7.1118 and of Rs. 50/- on 19.11.1118. The decree-holder was pressing his application in the meanwhile and on 19.11.1118 the execution court ordered that the appellant should deposit Rs. 150/- on 19.12.1118 and the balance of the amount on 15.2.1119. On 19.12.1118 he deposited Rs. 50/- and asked for one month's time to deposit the balance of Rs. 100. 50/- on 19.11.1118. The decree-holder was pressing his application in the meanwhile and on 19.11.1118 the execution court ordered that the appellant should deposit Rs. 150/- on 19.12.1118 and the balance of the amount on 15.2.1119. On 19.12.1118 he deposited Rs. 50/- and asked for one month's time to deposit the balance of Rs. 100. This was allowed and the case posted to 19.1.1119. He deposited Rs. 100 on that date. Thereafter on 16.2.1119 the appellant filed a petition that the balance due under the decree may be ascertained and that he may be granted a chalan to pay the same into court. The execution court fixed the amount at Fanams 4909-3 chs. 0 on 25.4.1119 and this was objected to by the appellant and on his statement filed in court he prayed that satisfaction of the decree should be entered on his depositing Rs. 7-27 chs. which amount alone remained due under the decree. In the statement filed by the judgment-debtor the debt due under the decree was calculated adding interest at 4 per cent only after the date of the Debt Relief Act and the debt so calculated amounted to Rs. 1909-3-0. As the debt was being discharged within six years after the Act, it was stated that the debtor was entitled to a remission of 25 per cent under Ss. 9, 2 (a) of the Act and the amounts deposited by him were sufficient to cover 75 per cent of the debt and the whole of the costs which fell outside the purview of the Act. When the decree schedule properties were proclaimed for sale and the sale was posted to 5-8-1116, the appellant deposited a certain amount out of the decree amount as stated in the proclamation and applied for an adjournment of the sale. The Debt Relief Act had come into force then and yet the appellant did not demur at the calculation of interest at 7 1/2 per cent despite the provision of S. 12 of the Act that not more than 4 per cent towards interest was recoverable from the date of the commencement of the Act. The Debt Relief Act had come into force then and yet the appellant did not demur at the calculation of interest at 7 1/2 per cent despite the provision of S. 12 of the Act that not more than 4 per cent towards interest was recoverable from the date of the commencement of the Act. Applications for execution filed subsequently were also not objected to on the ground that the debtor was resorting to any particular method of discharge provided for by the Act and that he was not liable to pay any higher rate of interest than 4 per cent per annum. The deposits that were made by the debtor were also not in conformity with the particular fractions of the debt half-yearly which would have been due to be deposited, if the debt was to be discharged in nine years, six years or two years as the case may be. It is clear therefore that the debtor had no intention of availing himself of the concessions that were due to him under the Debt Relief Act. The debt itself at its inception was due as the balance of consideration due under a sale deed taken by the debtor and if in spite of taking a hypothecation bond to secure the payment of the debt, the vendor had a lien on the property sold, the liability was excluded from the purview of the Debt Relief Act by S. 4 (i) of the Act. The creditor could have contended that the Act would not apply to the debt and it is probable that the debtor advisedly did not file any application for permission to pay by instalments under the Act. The creditor's application for execution of the decree and his bringing the properties for sale would effectively have been stopped by the debtor if only he had filed an application in time for permission to make payments under S. 9 of the Act. It has to taken therefore that he deliberately relinquished his rights under the Debt Relief Act and chose to pay the whole debt due under the decree with the rate of interest as awarded by the decree. It has to taken therefore that he deliberately relinquished his rights under the Debt Relief Act and chose to pay the whole debt due under the decree with the rate of interest as awarded by the decree. As has been held in Kolappa Pillai v. Savarimuthu Dhasein (1942 Travancore Law Reports 409) any person may at his own pleasure renounce the benefit of any stipulation or other right introduced in his own favour when the renunciation of such benefit or right is not opposed to public policy or public morality. It has also been laid down that there is nothing in the Debt Relief Act to show that the relinquishment by a debtor of his righter under the Act is opposed to public policy or morality as it is a matter in which he alone is concerned. The learned Advocate for the appellant referred to the decision in Velandy Vadhiar v. Venkiteswara Iyer (1943 Travancore Law Reports 441) in which it was held that no order of court was contemplated by the Debt Relief Act to enable the debtor to take advantage of the provisions of Ss. 8 and 9 of the Act. It was argued therefore that even without an application in that behalf a debtor was entitled to resort to one or other of the methods of discharge of a debt provided by the Act. But there must be some intimation either by the amount deposited or by regularity of the instalments to show that the intention of the debtor was to avail himself the benefits conferred by the Act. The decision in Velandy Vadhyar v. Venkiteswara Iyer (1943 Travancore Law Reports 441) does not go further than to hold that the Act provides only a method of discharge and if such method of discharge is once availed of and completed, it would be sufficient answer to an application for the execution of the decree. In the present case, there is no indication that the method of discharge under the Act was at any time availed of, by the debtor and the deposits made by him were in pursuance of orders of court on the point of either the execution sale or the taking out of other processes allowed by law in execution. In the present case, there is no indication that the method of discharge under the Act was at any time availed of, by the debtor and the deposits made by him were in pursuance of orders of court on the point of either the execution sale or the taking out of other processes allowed by law in execution. We have therefore no hesitation to hold that the appellant had deliberately relinquished his rights, if any, under the Act and that it was not open to him to apply that the payments made by him are to be appropriated under the terms of Ss. 9, 2 (a) of the Debt Relief Act. The question whether the debt represents a liability arising out of a sale of immovable property in respect of the balance of purchase money for which the vendor (creditor) has a lien on the property and is exempted from the operation of the Act does not therefore arise for consideration. This appeal is groundless and it is dismissed with costs. Appeal dismissed.