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2003 DIGILAW 616 (MAD)

Duraiswamy Naicker v. Kaliammal & Others

2003-04-07

K.GNANAPRAKASAM

body2003
Judgment :- The plaintiff-decree holder in O.S.No.1386 of 1979 on the file of the Principal District Munsif, Kallakurichi has preferred this revision as against the order dated 11.2.1997 passed in E.P.No.726 of 1982 arising out of the above said suit. 2.The plaintiff obtained a decree against the defendants on 21.1.1982 in respect of money claim. The suit was filed in the year 1979 and decree was passed on 21.1.1982. During the pendency of the suit, The Tamilnadu Debt Relief Act (XIII of 1980) came into force and the defendants did not claim any benefit under the said Act. But however, when the plaintiff sought to execute the decree in 1982, the defendants-judgment debtors have resisted the execution proceedings on the ground that are entitled to the benefits conferred under the Tamilnadu Debt Relief Act (L of 1982). 3.The claim of the defendants-judgment debtors was accepted by the Executing Court and the Execution Petition was dismissed on 11.2.1997. Aggrieved by the same, the plaintiff-decree holder has preferred this revision. 4.Learned advocate for the revision petitioner has submitted that the decree was passed on 21.1.1982 after coming into force of the Tamilnadu Debt Relief Act (XIII of 1980) and the defendants-judgment debtors did not claim any benefit under the said Act and therefore, they are not entitled to claim the relief conferred under the present Act of Tamilnadu Debt Relief Act (L of 1982) and has further submitted that the Executing Court is not correct in accepting the claim of the defendants. It is further submitted that RW1 has admitted in the cross examination that her annual income is Rs.5,000/- and therefore, the judgment-debtors are not entitled to the relief conferred under the Tamilnadu Debt Relief Act (L of 1982). This fact was also not properly considered by the Executing Court. As far as the second aspect is concerned, the learned advocate for the resvision petitioner would submit that there is no admission by PW1 that the annual income of the Judgment-debtors is Rs.5,000/-, but on the other hand, the said evidence was given only by RW1, i.e., plaintiff and therefore, it is not the admission made by RW1. 5.Now let us consider the legality of the order passed by the Executing Court. 5.Now let us consider the legality of the order passed by the Executing Court. 6.The plaintiff filed the suit in the year 1979 and obtained a decree only on 21.1.1982 and during the pendency of the suit, Tamilnadu Debt Relief Act (XIII of 1980) came into force. It is the contention of the plaintiff-decree holder that the defendants have not claimed any benefit under the said Act and therefore, they are precluded from making any claim under the subsequent Act. It is seen that the defendants have claimed the benefit under the Tamil nadu Debt Relief Act (L of 1982) only before the Executing Court and it is therefore contended that the defendants-judgment debtors are precluded from making such a claim. 7.The Debt Relief Acts are legislations enacted to obviate the difficulties and to provide relief to certain indebted persons from the usurious practices of pawnbrokers, money lenders and other non institutional sources of credit and to give relief from the debts due to the above said persons and institution. These Acts were enacted from time to time with certain modifications also. 8.The Tamilnadu Debt Relief Act (XIII of 1980) was received the assent of the President of India on the 19th day of April,1980 and the plaintiff obtained a decree on 21.1.1982. The learned advocate for petitioner has strenuously argued that the defendant, not having claimed the benefit during the pendency of the suit, is not entitled to claim the benefit under the subsequent Act. Ofcourse, it is true that the defendants have not claimed benefit under the Tamilnadu Debt Relief Act (XIII of 1980) would it mean that they have waived or given up their rights. But however, they claimed benefit under the Tamilnadu Debt Relief Act (L of 1982). As these are all beneficial legislations intended to provide relief to the indebted persons, it is always open to them to claim the said benefit as and when it is available to them. The mere fact that they have not made claim under the earlier Act, would not preclude them, from making such a claim under the subsequent Act. It is not the case of the plaintiff that the defendants have claimed the benefit under the Tamilnadu Debt Relief Act (XIII of 1980) and that the claim was rejected and they have not challenged the same and hence their right is barred. It is not the case of the plaintiff that the defendants have claimed the benefit under the Tamilnadu Debt Relief Act (XIII of 1980) and that the claim was rejected and they have not challenged the same and hence their right is barred. It is the case, where the defendants have not claimed the benefits at all. Under such circumstances, I am of the view that the defendants cannot be shunted from making such a claim when the benefit is conferred and available under the Act. In the said view of the matter, I feel that the claim made by the defendants under the present Tamilnadu Debt Relief Act (L of 1982) is not barred. Moreover, it is the settled principle that there cannot be any estoppal against the statute and no one could be estopped from making the claim, when the benefits are available under the statute. Therefore, the claim made by the defendants-judgment debtors under the Tamilnadu Debt Relief Act (L of 1982) before the Executing Court is valid. 9.Now let us see the definition of 'debtor' as given in the Act. The word "debtor" is defined under Section 3(d) of the Tamilnadu Debt Relief Act (L of 1982) (hereinafter called as 'Act') as follows:- "debtor" means any person from whom any debt is due and whose annual household income does not exceed four thousand and eight hundred rupees; subject to other conditions. But however, there is no evidence that the defendants-judgment debtors were having annual income exceeding four thousand and eight hundred rupees and this fact was discussed in detail by the Executing Court and the plaintiff-decree holder has not placed any material to disagree with the reasons given by the Executing Court in arriving at the conclusion that the annual household income of the defendants does not exceed four thousand and eight hundred rupees and therefore, the conclusion of the Executing Court that the defendants are debtors and they are entitled to the benefits of the Act is accepted. Section 4(a) of the Tamilnadu Debt Relief Act (L of 1982) runs as follows:- "every debt advanced or incurred before the 24th August, 1982 (including interest if any) and payable by the debtor to the creditor shall be deemed to be wholly discharged; and Section 4(c) of the Tamilnadu Debt Relief Act (L of 1982) reads as follows:- "all suits and other proceedings (including appeals, revisions, attachments or execution proceedings) pending on the 24th August, 1982 against any debtor for the recovery of any such debt including interest, if any shall abate; Admittedly the debt in the present case is due before 24.8.1982 and therefore, the defendants are entitled to the benefits under the Act and recovery of any such debt stands abatted and hence, the orders passed by the Executing Court do not at all warrant any interference by this court. 10. In the result, Civil Revision Petition is dismissed. No costs.