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1950 DIGILAW 121 (KER)

Varkey v. Abraham

1950-11-30

KUNHI RAMAN, SUBRAMONIA.IYER

body1950
Judgment :- 1. The assignee decree-holder is the appellant. The application for execution filed by him for recovery of balance decree amount as also of the costs decreed to the original decree-holder was dismissed by order dated 9.3.1125 passed by the learned District Judge of Kottayam. 2. It is admitted by the respondent judgment debtor that this order is wrong in so far as it relates to the costs portion of the claim. The costs awarded by the decree which is dated 11.8.1112 are unaffected by the Debt Relief Act as that Act affects only debts incurred before 23.5.1112. The order passed by the court on 6.4.1117 giving relief under the Debt Relief Act and fixing the amount and instalments payable also excluded from its operation the costs granted by the decree. The costs have not been realised admittedly. The order, therefore, is set aside in so far as it relates to costs. 3. The more important question relates to the decree amount. The facts are these: The decree was passed on foot of a deed of hypothecation executed by defendants 1 and 2 whose legal representatives are defendants 3 to 6. It was for an amount of Rs. 6,000 and odd. Before 1116 the equity of redemption over the properties directed to be sold by the decree was sold in execution of the decree against the judgment-debtors in O.S. No. 8 of 1110 of the Alleppey District Court. The purchaser standing in the shoes of the judgment debtor filed the application in Edavom 1116 for relief under the Travancore Debt Relief Act (II of 1116). As already mentioned, the Court passed the order granting relief and fixing the instalments. Pursuant to the order passed upon this application, the petitioner purchaser deposited various instalments. For the first and second instalments the amount deposited was in excess of the amount due to be deposited. For the third and 4th instalments no deposit was made. For the 5th instalment though a deposit was made, there was a shortage. There is a controversy as to whether this shortage is Rs. 7 or Rs. 75. If the excess deposited for the first and second instalments be adjusted towards the 5th instalments the deficit would be only Rs. 7. Otherwise it would be Rs. 75. For the 5th instalment though a deposit was made, there was a shortage. There is a controversy as to whether this shortage is Rs. 7 or Rs. 75. If the excess deposited for the first and second instalments be adjusted towards the 5th instalments the deficit would be only Rs. 7. Otherwise it would be Rs. 75. After the date of the 5th instalment, ie., on 11.12.1118 the original decree-holder filed a petition for execution stating that payment had been defaulted for two instalments and pursuant to the provisions contained in S. 9 of the Debt Relief Act he seeks recovery of those two instalments by taking processes in execution. On the next instalment due on 30.11.1119 the amount fixed for one instalment as per the order of the court as also Rs. 7 deficit for the 5th instalment was deposited. Thereafter, the instalments were paid regularly until 1120 by the purchaser. Afterwards the sale in O.S. No. 8 of 1110 already mentioned was set aside and the subsequent instalments after setting aside the sale were paid by the third defendant judgment-debtor and by 30.1.1125 the last deposit was made. With this last deposit it is admitted that 80 per cent with interest thereon as provided by the Debt Relief Act has been deposited. 4. Two questions are raised before us by the learned counsel for the appellant. One is that the judgment-debtor third defendant respondent is not entitled to take advantage either of the application made by the purchaser and the order of the court passed thereon or of the deposits made by the petitioner who was the purchaser. Another point is that assuming the third defendant judgment debtor is entitled to take advantage of the application made by the purchaser there has been default in three consecutive instalments of payment with the result that under S. 9 of the Debt Relief Act the entire debt became payable and the judgment debtor became disentitled to the benefits under the Act. 5. So far as the first point is concerned, the application and the deposits made by the purchaser of the equity of redemption were made as representative of the judgment debtor because he had purchased the equity of redemption. 5. So far as the first point is concerned, the application and the deposits made by the purchaser of the equity of redemption were made as representative of the judgment debtor because he had purchased the equity of redemption. Unlike a case where there are more judgment debtors than one and the question may arise whether an application made by one and an order passed thereon and deposits made thereunder can be availed of by another judgment debtor, here is a case where there is only one judgment-debtor and a third party having stepped into the shoes of that debtor made the payments. We consider that the application made by the purchaser must be regarded as an application made by the representative of the debtor, that the judgment debtor is entitled to take advantage of that application and the order passed thereon and also of the deposits made by the purchaser. It is not contended that the person making the application and making the deposit will not come within the ambit of the definition of 'debtor' under the Act. It is only contended that though the purchaser was a debtor the original debtor was also another debtor and that it is incumbent upon the original debtor himself to make an application and make deposits if he wanted to take advantage of the provisions of the Debt Relief Act. We are unable to accept this argument. The next question is as to whether the original decree-holder has waived his rights under the Debt Relief Act on account of his conduct as held by the court below. That conduct consists in this: In his application dated 11.12.1118 he sought relief as though there were instalments due and payable under the Debt Relief Act. On the case of the appellant urged before us, before that date there had been defaults for three consecutive instalments with the result that the entire decree amount became due in one lump and the debtor became disentitled to reliefs under the Act. If on account of default in payment of three consecutive instalments the entire debt became due, then the term 'instalment' would have no meaning. If on account of default in payment of three consecutive instalments the entire debt became due, then the term 'instalment' would have no meaning. Instalment under the Debt Relief Act and under a decree which has been directed to be paid by instalments must be taken as a term of art meaning instalments payable under the Act and under the order made by the court pursuant to the Act. This conduct of the decree-holder in regarding the instalments as due and seeking execution for two instalments as provided by the Act is, we consider, explicable only on the basis of there having been no default for three consecutive instalments or if there had been default for 3 consecutive instalments on the decree-holder having waived the benefits that accrued to him on account of that default. The party who has a right, whether contractual or statutory is entitled to waive that right and if a party once waives it he cannot afterwards say that it was competent to him not to have done so. Subsequently in two applications made by the original decree-holder on 16.6.1119 and 20.2.1121 for execution of the decree he has conducted himself consistent with the supposition of the debt ordered to be paid by instalments by the court was being paid by instalments without default. He sought execution of the decree for costs which was beyond the purview of the order under the Act, on the basis that the decree debt itself was being paid by instalments and there being no overdue instalments there was no part of that decree for execution at that time. In our opinion, this conduct of the original decree-holder amounts to a waiver of his right to get the entire debt in one lump on account of defaults and that it was not competent for him thereafter to say that there was default and forfeiture of the right by the judgment debtor. By the consequences of his conduct, he and his transferee must abide. On the question of waiver we took a similar view in A.S. 77/1950. The appellant who is the assignee-decree-holder got the assignment only in 1124 and before that date the assignor had ceased to be competent to seek recovery of the entire amount of the decree. The appeal is accordingly allowed insofar as the costs portion of the decree is concerned. The appellant who is the assignee-decree-holder got the assignment only in 1124 and before that date the assignor had ceased to be competent to seek recovery of the entire amount of the decree. The appeal is accordingly allowed insofar as the costs portion of the decree is concerned. The appellant is entitled to execute the decree for costs and for that alone. As regards the other part of the decree we hold that by the deposit made on 30.11.1125 the decree stands satisfied. The order made by the court below is modified to the above extent. In the circumstances of the case we make no order as to costs in this appeal. Appeal partly allowed.