Judgment : This appeal is directed against the fair order and decretal order passed by learned Subordinate Judge of Salem in I.A. No.604 of 1973 in O.S. No.256 of 1970 on his file. 2. The appellant is the second petitioner/ second defendant in I.A. No.604 of 1973 in the court below. The respondent/plaintiff obtained a mortgage decree against the appellant and his father in O.S. No.256 of 1970. I.A. No.604 of 1973 is an application by the appellant and his father under Sec.15 of the Tamil Nadu Debt Relief Act 38 of 1972 to amend the decree by scaling down the debt in accordance with the provisions of that Act. He claimed that under the provisions of the said Act he was not liable to pay interest at more than 9% per annum. The respondent disputed the status of the appellant as debtor within the meaning of the said Act. He further pleaded that there was no decree subsisting on the date of the application to be scaled down since it had worked itself out by the recording of full satisfaction on 23. 1973 itself by the executing court. The court below upheld the contention of the respondent and negatived the claim for scaling down by the judgment-debtor. 3. In the impugned order learned Subordinate Judge has taken the view that the appellant was having an annual income of Rs.2,400 per month and hence he was not entitled to the benefit of Act 38 of 1972. For this conclusion it relied on Ex.B-6 the counter of the appellant in R.E.P.No. 133 of 1972 offering to pay the decree amount in monthly instalments of Rs.200. In this counter the appellant also states that he was doing business in silver. Ex.B-3 is the certified copy of the written statement filed by the appellant second defendant in the suit saying that both the father and son constitute a joint Hindu family and the appellant was doing Commission Agent work as well as Silver Jewellery from 1960 onwards. The appellant used to sell silver chains in Andhra Pradesh and earn commission. The order of the court below reads that the appellant has undertaken to pay the decree amount at Rs.800 per month in Ex.B-6. And this will show that he is not entitled to the benefits of the Debt Relief Act. The appellant used to sell silver chains in Andhra Pradesh and earn commission. The order of the court below reads that the appellant has undertaken to pay the decree amount at Rs.800 per month in Ex.B-6. And this will show that he is not entitled to the benefits of the Debt Relief Act. Learned counsel for the appellant points out that the monthly instalments offered by the appellant under Ex.B-6 is only Rs.200 per month. Evidently the trial court has committed a factual error in reading Ex.B-6. So the mere fact that at one stage the appellant undertook to discharge the decree amount by paying Rs.200 per month will not disentitle him to be construed as a debtor within the meaning of Act 38 of 1972. 4. Evidently the trial court has committed a factual error in reading Ex.B-6. So the mere fact that at one stage the appellant undertook to discharge the decree amount by paying Rs.200 per month will not disentitle him to be construed as a debtor within the meaning of Act 38 of 1972. 4. A debtor is defined in sub-clause (3) of Sec.2 of Tamil Nadu Debt Relief Act 38 of 1972 as any person from whom any debt is due: Provided that a person shall not be deemed to be a debtor, if he,— (i) has in both the financial years ending on the 31st March, 1972 been assessed to income-tax under the Income-tax Act, 1961 (Central Act 43 of 1961) or under the income-tax law in force in any foreign country; or .(ii) has, in all the four half-years, immediately preceding the 1 st March, 1972, been assessed to profession tax on a half-yearly income of more than one thousand and two hundred rupees derived from a profession other than agriculture under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920), the Madras City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919), the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act 15 of 1971), the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958), the Cantonments Act, 1924 (Central Act II of 1924), or any law governing municipal or local bodies in this State or in any other State or Union Territory in India; or (iii) has in all the four half-years immediately preceding the 1st March, 1972 been assessed to property or house tax in respect of buildings or lands other agricultural lands, under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920), the Madras City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919), the Madurai City Municipal Corporation Act, 1971 (Tamil Nadu Act 15 of 1971), the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958), the Cantonments Act, 1924 (Central Act II of 1924), or any law governing municipal or local bodies in this State or in any other State or Union territory in India, provided that the aggregate annual rental value of such buildings and lands whether let out or in the occupation of the owner, is not less than rupees one thousand and two hundred. 5. 5. Ex.B-1 is a certificate granted by the Commissioner of Salem Municipality on 17. 1975 under Sec.25 of Act 38 of 1972. This reads that one Sundaram, Silversmith, Bungalow Street, Shevapet, Salem-2 has been assessed to profession tax on a half yearly income ranging from Rs. 1,900 to Rs.2,000 for the half years ending on 30.9.1969 and onwards till 33. 1972. Exs.B-4 and B-5 are the letters written by the appellant to his Advocate on 14. 1971 and 14. 1971 mentioning his visit to Delhi, Hyderabad and Kolapur in connection with his business. We have already seen that in Exs.B-3 and B-6 the appellant and his father have conceded that the appellant was doing commission work in silver jewellery. On the basis of these materials, learned Subordinate Judge has found that the appellant was having an annual income of more than Rs.2,400. However, it is the argument of learned counsel for the appellant that Ex.B-1 does not relate to the appellant at all. It does not contain the initial of the appellant. It merely describes the assessee as one Sundaram. In the other hand, he presses into service Ex.A-1 which is a certificate granted by the Commissioner of Salem Municipality on 212. 1976 stating that D.Sundaram, Silversmith shop, Syed Madar Sahib Street, Salem was assessed to profession tax on a half yearly income ranging from Rs.660 to Rs.2,000 from 30.9.1969 onwards. And it is his grievance that the trial Court has not referred to this document at all in the impugned order. Even if we are to take that Ex.A-1 alone relates to the appellant, we find for half years ending on 30.9.1970, 33. 1971 and 30.9.1971 he was assessed to profession tax on the basis that his income for those half years were Rs.1,900, Rs. 1,900 and Rs.2,000 respectively. As per clause (2) of the proviso to Sec.2(3) of Act 38 of 1972, the appellant will be disentitled to claim the benefit if only he was assessed to profession tax on a half yearly income of more than Rs.1,200 in all the four half years immediately preceding 3. 1972. Since as per Ex.A-1 his half yearly income ending on 33. 1970 was only Rs.660, it is evident that there is substance in the argument of learned counsel for the appellant, and the trial court has erroneously found against the appellant on this aspect. 6. 1972. Since as per Ex.A-1 his half yearly income ending on 33. 1970 was only Rs.660, it is evident that there is substance in the argument of learned counsel for the appellant, and the trial court has erroneously found against the appellant on this aspect. 6. However, the records in this case disclose that pursuant to the mortgage decree obtained in this case the property of the appellant was proceeded against in R.E.P. No. 133 of 1972. In the Court auction held on 2. 1973 it was sold for Rs.20,000. The sale was confirmed on 23. 1973. Thereafter full satisfaction was recorded and the execution petition was closed. Possession also was handed over to the court auction purchaser. Only check application to withdraw the deposit amount in court by the decree-holder was pending. The argument of the present respondent that as no decree was subsisting on me date of I.A. No.604 of 1973, there was no debt to be scaled down was found favour with teamed Subordinate Judge and hence the claim of the appellant under Sec.15 for scaling down the debt was dismissed. This view was assailed by learned counsel for the appellant in this Court. And in support of his contention he cited the decision in Bangaru Chettiar v. San Basha Sahib, (1976)2 M.L.J. 171 (F.B.). The passage at page 182 pressed into service by learned counsel for the appellant in the Full Bench decision runs as under: “The execution of the decree as it is by that court cannot be taken as putting an end to the benefits granted to the judgment-debtor by the provisions of the Act particularly by Sec. 19. Even if the sale has taken place in execution of the decree as it stands, still the judgment-debtor can file an application under Sec.19 and have the decree scaled down and claim the benefit of scaling down at the stage of the application of the sale proceeds. Where an application is made by the judgment-debtor for scaling down after the lapse of 60 days from the grant of stay under Sec.20 and the decree debt has been scaled down, it is not possible for the sale even if it had taken place as per the proviso, to be confirmed in the face of the order scaling down the debt. It has been held by Horwill, J., in Lakskminarasimha Rao v. Garapati Muneyya, (1940)2 M.L.J. 234 , that merely because full satisfaction of the decree has been entered up as a result of the sale and the confirmation thereof, it does not mean that execution is at an end, and Sec.20 can, therefore, be invoked to stay the delivery of the property to the auction-purchaser pending the application for scaling down the decree debt. We are not ‘therefore’ inclined to construe the non obstante clause occurring in the proviso as excluding the application of the Act to the judgment-debtor after the 60 days referred to therein. After the scaling down of the debt the further execution proceedings after the sale can proceed only on the basis of the decree as scaled down.” But the question that arose for consideration of the Full Bench was whether the benefit of Sec.23-C of Tamil Nadu Agriculturists’ Reliefs Act IV of 1938 introduced by the Amending Act VIII of 1973 could be availed of by a judgment-debtor whose property has been sold after 24th January, 1973 the date on coming into force of the said Amending Act. Whereas the decision in VinsithurthanChettiar v. The Government of Tamil Nadu, 95 L. W. 374, covers the present controversy. There the creditor filed the suit on the basis of a promissory note and obtained a decree. In execution, the property of the 4th respondent (debtor) was attached and brought to sale. The sale proceeds obtained in the court-auction sale were sufficient to fully discharge the decree debt. All this took place in 1978 before Tamil Nadu Act 13 of 1980 came into force. After the Act came into force, the debtor filed an application under Sec.5 of the Act before the Special Tahsildar (Debt Relief), for issue of a certificate of discharge. The application was dismissed by the Tahsildar on the ground that there being no debt due by the applicant as on that date, there was no question of giving a declaration. After the Act came into force, the debtor filed an application under Sec.5 of the Act before the Special Tahsildar (Debt Relief), for issue of a certificate of discharge. The application was dismissed by the Tahsildar on the ground that there being no debt due by the applicant as on that date, there was no question of giving a declaration. The appeal by the debtor against that order was allowed by the Appellate Authority who took the view that the Tahsildar was not right in accepting the evidence of the creditor that no amount is due to him, that unless some amount is due to the creditor, the debtor would not have filed an application and therefore, the decree debt should be taken to be subsisting on the date of the application and as the household income of the 4th respondent was only Rs.3,300 he should be declared to be eligible for getting the relief under the Act. Held: The Appellate Authority is in error in assuming a debt to be existing merely because the judgment-debtor has filed an application. Simply because an application has been filed under Sec.5 of the Act it is not possible to assume the existence of a debt when there is no subsisting debt as on the date of the application. By filing an application under Sec.5 of the Act, the debtor cannot reopen the execution proceedings as against him which have ended by the sale of the property in court-auction to third party and the decree-holder realising the amount due to him fully. Even assuming that the judgment- debtor is a person who will come within the definition of ‘debtor’ as defined under the Act as his income has been found to be less than Rs.4,000 per year, as there is no subsisting debt on the date of the application to the Tahsildar there is no question of a non-existing debt being discharged by an order passed under the provisions of the Act. On the ratio laid down in that case, there could be no doubt that in the present instance also no debt was subsisting on the relevant date to be scaled down and the court below has rightly negatived the plea of the appellant. 7. In the result, the appeal is dismissed. No cost.