Venkatachalarn Chettiar vs Adaikappa Chettiar and Another

Sethuraman , J.—This civil revision petition has been filed against the order of the learned Subordinate Judge, Devakottai, dated 20-10-

1978 dismissing E. A. No. 170 of 1978 in E. P. 17 of 1975. The execution petition was filed for realisation of the costs awarded by tins court in

App No. 640 of 1969. The petitioner herein filed the execution application in question for stay u/s 16 of the Tamil Nadu Ordinance 5 of 1978

which has now been replaced by Tamil Nadu Act 40 of 1978. The learned Subordinate Judge was of the view that the provisions of the

Ordinance could be invoked by a person who is entitled to scale down the decree or other benefits conferred under the Act and that, as regards

costs, the petitioner was not entitled to claim any relief under the said Ordinance. It is this order which is now challenged by the petitioner in the

present civil revision petition.

As already mentioned, Ordinance 5 of 1978 has been now replaced by Tamil Nadu Act 40 of 1978. There is no dispute that we are now

concerned only with the Act, as it is passed, as the Ordinance has been repealed. This Act has been passed for giving relief to certain indebted

persons in the State of Tamil Nadu. The definition of the word, ''debt'' in See. 2 (2) of the said Act runs as follows -

""Debt"" means any liability in cash or kind, whether secured or unsecured and whether decreed or not, but does not include rent as defined in

clause (8).

It is unnecessary to refer to clause (8) as the present case is not one for recovery of rent. u/s 6 of the Act, all debts payable by any debtor on 14th

July, 1978, are to be scaled down in accordance with the provisions of Chapter II of the Act. Section 10 provides as follows:-

Where a debt payable by any debtor includes any sum decreed as costs by any court, or sums lawfully expended by a mortgagee or other person

in order to preserve the property mortgaged, such sum or sums shall be recoverable in addition to the sum recoverable under the provisions of

Section 7"".

Section 15 of the Act dealing with amendment of certain decrees provides that where before the 14th July, 1978, 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 this 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 14th July, 1978 apply the provisions of this Act to such decree and shall, notwithstanding anything contained in

the Civil Procedure Code, 1908, amend the decree accordingly or enter satisfaction, as the case may be. Section 16 contemplates stay of

execution proceedings and it provides that every court executing a decree passed against a person entitled to the benefits of this Act shall on

application, stay the proceedings until the court which passed the decree has passed orders on an application made or to be made u/s 15. These

are the material provisions of the Tamil Nadu Act 40 of 1978.

The learned counsel for the petitioner contended that the expression ''debt'' as defined in Section 2(2) of the Tamil Nadu Act 40 of 1978 would

cover the liability in respect of costs, also, as It would be a liability which has been decreed. The learned counsel drew my attention to a judgment

of Ramaprasada Rao, J. as he then was, in Govindasami v. Balakrishna Reddiar, (1977)2 Mad LJ466. The contention of the learned counsel was

that the provisions of the present Act, namely, Tamil Nadu Act 40 of 1978, were in pari materia with those, in Tamil Nadu Act 15 of 1976, so that

the said decision would have to be applied, to the present case.

In the said case the learned Judge was concerned with the definition of the expression ''debt'' as defined in Section 2(c) of the Tamil Nadu Act

15 of 1976 which ran as follows-

''Debt'' (i) means any sum of money which a person is liable to pay under a contract (express or implied) for consideration received; and (ii),

includes rent in cash or kind which a person is liable to Pay or deliver in respect of the lawful use and occupation of agricultural land"".

The question before the learned Judge in that case also was whether costs would fall within the definition of the expression ''debt'' as defined in that

Act In that case an agriculturist filed an application u/s 4 of the Tama Nadu Act 15 of 1976, to stay the execution of the decree for costs. The

learned Judge found that there was a contrast between the expression ''debt'' as defined in the Tamil Nadu Act 16 of 1976 and that defined in the

Tamil Nadu Act 15 of 1976. Having regard to the definition of ''debt'' in the Tamil Nadu Act 15 of 1976, the learned Judge was of the view that

the decree debt was not a debt from payment of which an agriculturist could claim temporary relief under the Tamil Nadu Act 15 of 1976. As

there was a deliberate departure made by the Legislature, the learned Judge was of the view that an agriculturist was bound to pay the decree

debt, while a person who came within the meaning of ''an indebted person'' under Tamil Nadu Act 16 of 1976 was not expected to respect a

decree, but, on the other hand could seek for temporary relief in the matter of its satisfaction. The ''debt'' contemplated there included any decreed

amount including costs. The definition of ''debt'' in the Tamil Nadu Act 15 of 19T6 being different from that in the Act with which I ''am now

concerned, the interpretation of the expression ''debt'' in the Tamil Nadu Act 15 of 1976 will not apply to this case. Therefore, there is no scope

for applying the said decision to the facts of the present case.

In the present case, Section 10 of the Tamil Nadu Act 40 of 1978 clearly excludes from the benefits conferred on a debtor, a decree debt in

respect of costs. Any definition provision will have to be considered only in the light of the provisions of the Act. In other words, the definition

provision would apply, only if the context required its application. If the context required otherwise then the definition provision would not be in a

position to control the rest of the provisions. Having regard to the provisions of Section 10 of the Tamil Nadu Act 40 of 1978, in the present case

which specifically excludes from the scope of the relief given to a person sought to be benefited by the Act, a decree in respect of costs, it is not

possible to stay the proceedings as contemplated by Section 16. The learned Subordinate Judge was therefore right in his construction of Section

16.

The learned counsel for the Petitioner states that he has already filed an application for scaling down the debt before this court as contemplated

by the provisions of, the Tamil Nadu Act 40 of 1978. His point was that any decision in the present revision petition would have affected the relief

that he might claim in the petition filed in this court I do not find that there is any scope for the present judgment affecting in any manner the relief

that he may claim in any other proceeding. The present revision petition being confined to the execution in respect of costs which is treated

differently under the Act the dismissal of this petition will not affect the disposal of any petition that the petitioner may have filed in order to secure

the relief contemplated by the provisions of the Tamil Nadu Act 40 of 1970 in respect of the sum other than costs, decreed as against him.

The revision petition accordingly fails and is dismissed. There will be no order as to costs.

Revision dismissed.