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1963 DIGILAW 173 (KER)

JOSEPH VARKEY v. JOSEPH MATHEW

1963-07-12

T.K.JOSEPH

body1963
Judgment :- 1. The judgment-debtor applied under S.7 of Act 31 of 1958 for amendment of the decree passed after the said Act came into force. The application was dismissed on the ground that the judgment-debtor had forfeited benefits under the Act by default in payment of six consecutive instalments. He has preferred this Civil Revision Petition from the said order. 2. The consequence of committing default in payment of six consecutive instalments is provided for by the Proviso to S.4 (5) of the Act. All that the debtor forfeits by such default is the benefit of Clause.2 and 3 of S.4. L e. the right to pay the debt in instalments. It cannot be said that he will forfeit the other benefits conferred by the Act. 3. Counsel for the respondent urged that the provisions regarding interest in S.5 of the Act were only for the purpose of payment under S.4 and that when the benefits under S.4 were forfeited by default, there was no scope for the application of S, 5. I am unable to agree. There is nothing in S.5 which restricts its operation to oases of payment under S.4. The Act contemplates payments other than under S.4 and a debtor who has committed default in payment of six consecutive instalments can claim the benefit of amendment of the decree in the light of S.5 of the Act. 4. The question remains whether the fact that the decree was passed after the Act came into force is a bar to the granting of the prayer for amendment of the decree. The provisions of the Act as they stood on the date of the decree, i. e. on 27th July 1959 were taken into consideration in fixing the amount payable by the debtor. S.5 however was replaced by a new section by the Amending Act II of 1961 and under the new section the debtor is entitled to have interest calculated at 5% per annum from the date of the transaction and also to have appropriation of payments made before the date on which the Act came into force reopened. The provision of Clause.2 of S.7 which provides for amendment of decrees passed after the date of the Act enables the court to amend decrees of this kind. There is therefore no bar to this application. The provision of Clause.2 of S.7 which provides for amendment of decrees passed after the date of the Act enables the court to amend decrees of this kind. There is therefore no bar to this application. It follows that the order of the court below must be set aside. I do so and remand C. M. P. 1108 of 1962 for fresh decision according to law. The CRP. is allowed as indicated above. In the circumstances, I make no order as to costs.