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1966 DIGILAW 340 (KER)

Ittan Madhavan v. Ouseph Joseph

1966-12-01

S.VELU PILLAI, T.S.KRISHNAMOORTHY IYER

body1966
Judgment :- 1. The judgment debtor whose application filed before the execution court under S.4 and 5 of Act 31 of 1958, as amended by Act 2 of 1951, was dismissed by the appellate court, is the revision petitioner. 2. The decree in execution was passed on 17 31960 subsequent to Act 31 of 1958 but before it was amended by Act 2 of 1961.. The decree awarded interest at the contract rate, which is more than 5 per cent per annum, from the date of the transaction till 14 71953, the date on which Act 31 of 1958 came into force. After the pissing of the Amendment Act 2 of 1961, the judgment debtor filed an application in the execution court under S.4 and 5 of Act 31 of 1958 as amended, and prayed that interest should be calculated at the rate of 5 per cent only on the principal amount from the date of the transaction. Though this prayer was granted by the learned Munsiff, the order was set aside by the learned Additional District Judge of Kottayam in appeal. 3. The prayer of the revision petitioner was refused by the learned Additional District Judge relying on the decision in Canara Industrial and Banking Syndicate Ltd., v. Sarvothama Kamath 1963 KLT. 947 on the ground that the decree having been passed applying the provisions of Act 31 of 1958, it is Dot open to the judgment debtor to pray for an amendment of the decree under S.7 (2) of the Act. 4. The case before us has to be decided on an interpretation of S.4 and 5 of Act 31 of 1958. The facts in the decision in Canara Industrial and Banking Syndicate Ltd., v. Sarvothama Kamath 1963 KLT. 947 are, a decree was passed under S.10(2) of Act 31 of 1958 before its amendment by Act 2 of 1961, for payment of the decree debt in 17 instalments, and the decree-holder a Banking Company filed an application under S.7 (2) of Act 31 of 1958 for amending the decree in accordance with the provisions of the amending Act. 947 are, a decree was passed under S.10(2) of Act 31 of 1958 before its amendment by Act 2 of 1961, for payment of the decree debt in 17 instalments, and the decree-holder a Banking Company filed an application under S.7 (2) of Act 31 of 1958 for amending the decree in accordance with the provisions of the amending Act. Raghavan, J., took the view that when once a decree was passed applying the provisions of Act 31 of 1958, though before it was amended by Act 2 of 1961, in view of the retrospective operation given to the amending Act a party to such a decree has no right to pray for amendment of the decree under S.7 of the Act. The said decision has no bearing to the facts of the case before us, as in the case before us there is no prayer for amendment of the decree under S.7 of the Act. The point raised before us has to be resolved in the light of the wording of S.4 and 5 of Act 31 of 1958. 5. S.4 (1) and (1) & S.5 (1) (a) of Act 31 of 1958, which are alone relevant for the purpose of the revision petition before us, are extracted below: (Sections omitted) x x x x x x x x 6. In Narayana Shenoi v. Raya Prabhu 1965 KLT. 1012 Raman Nayar, J., held: "S. 4 of Act 31 of 1958 (and, as a consequence of sub-section (2) thereof, S.5) applies notwithstanding any decree or order of court, which expression would include an order made under S.7 of the Act amending a decree by applying the provisions of the Act. Therefore an executing court is bound to apply the provisions of S.4 and 5 notwithstanding an order made under S.7." This decision was followed by a Division Bench of this Court in C. R. P. 894 of 1964. On the same principle the expression'decree' in the non-obstante clause in S.4 (1) of Act 31 of 1958 will necessarily take in'a decree' even passed after the commencement of Act 31 of 1958 and S.4 and 5 have therefore to be applied to a decree though passed after Act 31 of 1958. On the same principle the expression'decree' in the non-obstante clause in S.4 (1) of Act 31 of 1958 will necessarily take in'a decree' even passed after the commencement of Act 31 of 1958 and S.4 and 5 have therefore to be applied to a decree though passed after Act 31 of 1958. If the judgment debtor prays before the execution court for the reliefs under S.4 and 5 of Act 31 of 1958, that court is bound to apply those provisions and give relief to him notwithstanding that the decree is passed either before or after Act 31 of 1958. It follows that the learned Appellate Judge was not justified in dismissing the application filed by the judgment debtor on the ground that S.7 of Act 31 of 1958 is a bar to such application. In this view, the order of the learned Appellate Judge cannot be sustained. 7. In the result, we set aside the order of the learned Additional District Judge and restore that of the trial court. The Civil Revision Petition is thus allowed. In the circumstances of this case, we make no order as to costs in this Court. Allowed.