Sundaram vs Varadaiyar

K.A. Swami, C.J.—There is an unusual delay in representing the papers. Instead of troubling the respondent, on the question of

condonation of delay in representing the papers, we wanted to satisfy ourselves about the merits of the case, as the appeal has been filed in time.

There is a delay of 386 days in representing the papers. Hence the delay is condoned. We have heard the learned counsel for appellant on the

merits of the appeal.

The one and the only contention urged before us is that the appellant is entitled to the benefits of the Tamil Nadu Debt Relief Act, 1972 (Tamil

Nadu Act 38 of 1972) hereinafter referred to as the Act, therefore, he filed an application u/s 15 of the Act, that on the date of filing of the

application the decree holder had not drawn the amount and the decree had no been fully executed. On the contrary, it was the contention of the

decree holder that the application was filed only on 21.4.1973; that before that date the decree was executed; that in execution of the decree the

property of the judgment-debtor was sold in Court auction; that the auction purchaser deposited the amount; that the sale was confirmed; the

possession was delivered and that the satisfaction of the decree was recorded, therefore, there was no decree and no debt subsisting on the date

the application was filed.

The trial Court dismissed the petition holding that the petitioner/appellant was not a debtor. In the appeal, the learned single Judge came to the

conclusion that even though the petitioner/appellant was a debtor and the trial Court had erroneously held that he was not a debtor, but on the date

the application was filed, the decree had stood fully satisfied, therefore, there was no decree subsisting and there was no debt to be scaled down.

The learned single Judge has followed the decision of a Division Bench of this Court in Vinsithurthan Chettiar v. The Government of Tamil Nadu,

95 LAV. 374 and distinguished a Full Bench decision of this Court in Bangaru Chettiar Vs. San Basha Sahib and Another, .

In this background, the only point that arises for consideration is as to whether on the date the application was filed by the appellant u/s 15 of

the Act the debt was subsisting. The Act was published in the Tamil Nadu Government Gazette on 15th December, 1972.

Clause (2) of Section 2 states: -

''debt'' means any liability in cash or kind, whether secured or unsecured, due from a debtor whether payable under a decree or order of a civil or

revenue court or otherwise, but does not include rent as defined in clause (9)

Clause 3 of Section 2 defines:-

debtor"" means any person from whom any debt is due

The proviso and explanation thereto are not relevant for our purpose in this case.

Section 15 (1) of the Act provides thus:

Where before the publication of this Act, a Court has passed a decree for the repayment of a debt, it shall, on the application of any judgment-

debtor who is a debtor within the meaning of the Act, or in respect of a Hindu joint family debt, on the application of any member of the family

whether or not he is the judgment-debtor or on the application of the decree-holder within six months from the date of publication of this Act,

apply the provisions of this Act to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (Central Act V

of 1908) amend the decree accordingly or enter satisfaction, as the case may be:

Provided that all payments made or amounts recovered, whether before or after the publication of this Act in respect of any such decree shall first

be applied in payment of all costs as originally decreed to the creditor.

No doubt, in the instant case, the petitioner/appellant did make an application within six months from the date of publication of the Act, but on the

date he filed the application there was neither a decree existing nor a debt was due. In order to avail the benefit of the Act, the applicant must be a

debtor and the debt must be due on the date the application is filed for scaling down the debt u/s 15 (1) of the Act. A decree will be subsisting till

the satisfaction of it is recorded by the Court. Debt can be considered to be due until it is discharged or till the date the creditor loses his right to

recover the debt by reason of law of limitation. Of course, in the case of a decretal debt, it continues to be due until the decree stands unsatisfied

and remains unexecuted. In the instant case, pursuant to the decree obtained by the plaintiff in O.S.No.256 of 1970 on the basis of the pronote,

the property of the judgment-debtor was sold in execution of the decree in the auction held by the court on 8.2.1973, the sale was confirmed on

23.3.1973, full satisfaction of the decree was recorded, and the possession of the auctioned property was handed over to the auction-purchaser,

of course, the cheque application filed by the decree-holder to draw the amount deposited in the Court by the auction purchaser was pending on

the date the application, I.A.No.604 of 1973 in O.S.No.256 of 1970, was filed by the judgment-debtor for scaling down the debt u/s 15 of the

Act. These facts are not in dispute. Thus, on the established facts, it is clear that the decree was executed and the satisfaction of the decree was

recorded, therefore, the decretal debt stood satisfied before the filing of the application for scaling down the debt.

The fact that the cheque application filed by the decree-holder to draw the decree amount was pending cannot be held to enable the petitioner

appellant to invoke Section 15 of the Act. The payment of the amount due to the decree-holder, after the satisfaction of the decree is recorded, is

only a ministerial act to be carried out by the ministerial officer of the Court pursuant to the order passed by the Court, certifying that the decree is

satisfied. Therefore, this is a case in which though the petitioner/appellant had a right to seek scaling down of the debt as per Section 15 of the Act,

he did not avail of that right before the debt stood extinguished by reason of execution of the decree and recording of satisfaction of the decree,

therefore the principle laid down in Vinsithurthan Chettiar v. The Government of Tamil Nadu, 95 L.W. 374, applies to the instant case. Learned

single Judge is correct in holding that the rule laid down in Bangaru Chettiar Vs. San Basha Sahib and Another, is not applicable to this case. We

see no reason to admit the appeal. It is accordingly dismissed.