Aley vs Outh

The 5th Defendant is the Appellant. The decree was for money due under a promissory note. In 1116, the 1st Defendant filed, a petition under Sections 8, 9 and 15 of the Debt Relief Act and was paying the debt in instalments. Subsequent to his death, the 5th Defendant, as additional Petitioner, was depositing the further instalments. In 1124, the Appellant applied for settlement of the amounts and to issue chalan for what was due to make up the 80 per cent of the debt.

The office prepared a statement showing that the Petitioner had deposited Rs. 111-8chs..in excess of the amount due to the decree-holder. The chalan was not issued arid no further amount was deposited.

On 29-1-1125 he filed a petition for payment of the amount paid in excess and to enter satisfaction of the decree. That petition was rejected finding that the decree was not fully satisfied. The Appellant then filed A. S. 154 of 1950 before this Court. It was decided then that there had been no excess payment and that the order of the lower Court dismissing the petition for the reimbursement was correct. It was also directed that the question whether the Appellant had forfeited his right under the Debt Relief Act or not might be decided by the lower Court in appropriate proceedings. After this, a statement of the accounts was filed and the same was examined by the lower Court. It was found that the Appellant was a defaulter and hence he was not entitled to the benefits under the Debt Relief Act.

In passing the said order, the lower Court had evidently committed a mistake. The decree in the case was passed against the debtor on 28-12-1115. Evidently, therefore, the costs decreed would not be within the purview of the concessional payment sanctioned under Sections 8 and 9 of the Debt Relief Act. It was admitted by the learned Counsel for the Respondent that if the costs are not to be taken into account then the amount deposited by the debtor in instalments was sufficient to discharge the decree except that relating to costs. There would also be no default of three consecutive instalments. The Appellant had filed a statement on 10-12-1951 showing the amount paid on the various dates. The only argument advanced against the acceptance of the Appellant''s position that the decree remained discharged was based on the order of the lower Court on 27-12- 1116 fixing the amount.

That order only stated the amount due under the decree, which took into account the costs also. That order could only mean a determination of the amount due under the decree. A final calculation to see whether the debt had been discharged is contemplated in Sections 9(i)(c) and 3(b). So far as the last instalment is concerned, a calculation is necessary to know the exact amount to be paid by the debtor in full satisfaction of the decree. The order of 1116 can therefore be taken to be only to indicate the amount of the debt due on 1-2-1116. There does not appear to be any objection in holding that the portion of the decree to which the Debt Relief Act would apply had been discharged within nine years. The decree-holder would be entitled to the full costs allowed by the decree. The Debt Relief Act has nothing to do with that portion of the decree. The lower Court will make a calculation of the amount thus actually due under costs and pass final orders allowing execution for the balance, if any. It is therefore declared that the portion of the decree to which the Debt Belief Act would apply stands discharged. In the circumstances of this case the parties will bear their costs of this appeal.