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S. Karuppanna Gounder Vs. S. Ramaswamy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)2MLJ207
AppellantS. Karuppanna Gounder
RespondentS. Ramaswamy
Excerpt:
.....has already been satisfied, there is no debt subsisting for applying the provisions contained in tamil nadu act 40 of 1979. 5. before me, the learned counsel for the petitioner submits that the principle of order ii, rule 2 of the code of civil procedure is not applicable to the facts of this case, since on the date of the filing of the earlier suit, tamil nadu act 40 of 1979 was not in force, and therefore there was no possibility for the petitioner applying the provisions of the said act and claiming relief against the respondent on the basis of the said provisions. it is well established that a repeal of a statutory provision does not affect the previous operation of these provisions unless the statute specifically says that the repealed provisions should be taken to have been not..........the respondent-defendant, in view of the fact that the respondent was entitled to the benefit of tamil nadu act 40/78, the amount borrowed under the promissory note, as scaled down under the provisions of the said act, was claimed in the suit. the said suit was decreed for the amount claimed by the petitioner and the amount has also been realised by the petitioner from the respondent. subsequently the tamil nadu act 40 of 1978 was repealed by the tamil nadu act 40 of 1979. as per the provisions of the latter act, a creditor is entitled to claim the entire amount due on a promissory note with interest due thereon. hence the plaintiff-petitioner filed the present suit o.s. no. 2491 of 1979 on the file of the court of the district munsif of karur, claiming the balance of the amount said.....
Judgment:
ORDER

G. Ramanujam, J.

1. This revision is directed against the concurrent decision of the Courts below dismissing the suit O.S. No. 2491 of 1979 on the file of the Court of the District Munsif of Karur.

2. The petitioner herein filed an earlier suit, O.S. No. 727 of 1978 on the file of the Court of the District Munsif of Karur, against the respondent herein for recovery of a sum of Rs. 1,137-50 due on a promissory note executed by the respondent in favour of the petitioner for Rs. 1,500/-Though the promissory note was executed for Rs. 1,500/- by the respondent-defendant, in view of the fact that the respondent was entitled to the benefit of Tamil Nadu Act 40/78, the amount borrowed under the promissory note, as scaled down under the provisions of the said Act, was claimed in the suit. The said suit was decreed for the amount claimed by the petitioner and the amount has also been realised by the petitioner from the respondent. Subsequently the Tamil Nadu Act 40 of 1978 was repealed by the Tamil Nadu Act 40 of 1979. As per the provisions of the latter Act, a creditor is entitled to claim the entire amount due on a promissory note with interest due thereon. Hence the plaintiff-petitioner filed the present suit O.S. No. 2491 of 1979 on the file of the Court of the District Munsif of Karur, claiming the balance of the amount said to be due under the promissory note representing one half of the principal with interest at 9% per annum.

3. The said suit was resisted by the defendant-respondent contending that the plaintiff-petitioner having filed an earlier suit O.S. No. 727 of 1978 for one half of the principal and interest thereon and having obtained a decree and realised the decree amount, the amount due under the promissory note stood completely discharged and there was no question of the plaintiff filing the second suit. O.S. No. 2491 of 1979, for recovery of the alleged balance amount, said to be still due under the promissory note. It was claimed by the respondent that the present suit was barred under Order II Rule 2 of the Code of Civil Procedure and hence it was not maintainable. He also pleaded that in any event, he being a small farmer, is entitled to the benefits of Tamil Nadu Acts 31 of 1978 and 13 of 1980.

4. The trial Court found that the second suit filed by the petitioner is barred under Order II Rule 2 Code of Civil Procedure, that even otherwise the debt due on the promissory note is not subsisting as the petitioner has already obtained a decree for the amount due on the promissory note and realised the same and that actually when there is no subsisting debt, the provisions of Tamil Nadu Act 40 of 1979 will not apply. In that view the trial court dismissed the suit. On appeal, the Sub-Court, Karur affirmed the view of the trial Court. According to the lower Appellate Court, the suit is barred under Order II, Rule 2 of the Code of Civil Procedure and in any event when the decree obtained on the promissory note has already been satisfied, there is no debt subsisting for applying the provisions contained in Tamil Nadu Act 40 of 1979.

5. Before me, the learned Counsel for the petitioner submits that the principle of Order II, Rule 2 of the Code of Civil Procedure is not applicable to the facts of this case, since on the date of the filing of the earlier suit, Tamil Nadu Act 40 of 1979 was not in force, and therefore there was no possibility for the petitioner applying the provisions of the said Act and claiming relief against the respondent on the basis of the said provisions. It is no doubt true that Tamil Nadu Act 40 of 1979 came into existence long after the filing of the earlier suit, O.S. No. 727 of 1978, by the petitioner. The question is not, whether Tamil Nadu Act 40 of 1979 was in force on the date of the filing of the earlier suit, but the question is whether in respect of the debt due by the respondent to the petitioner under the promissory note, the petitioner could file two suits-one based on the provisions of Tamil Nadu Act 40 of 1978 and the other based on the provisions of Tamil Nadu Act 40 of 1979. To prevent such multiplicity of suits alone, Order II Rule 2 of the Code of Civil Procedure has been enacted. According to that provision., in respect of the same cause of action, all reliefs should be claimed in the same suit. If really the petitioner wanted to keep alive his claim in part, he should have made a reservation to that effect in the plaint filed in the earlier suit. Even if such reservation is made, it is still arguable whether the petitioner, on the basis of such reservation, could file another suit in respect of the same debt due under the promissory note. The debt due under the promissory note is one and entire and it is not possible for the petitioner to split it up into two and file two separate suits in respect of separate portions of the same debt. In the circumstances, the view taken by both the Courts below that the second suit filed by the petitioner in respect of the debt which has already been sued upon and recovered cannot be maintained is correct.

6. Even assuing that it is open to the petitioner to file the second suit in respect of the same debt, in view of the statutory provisions in Tamil Nadu Act 40 of 1979, it is difficult to accept the petitioner's contention that by repeal of Tamil Nadu Act 40 of 1978, all the earlier proceedings initiated by the petitioner in respect of the debt due by the respondent to him have abated or have become infructuous. It is well established that a repeal of a statutory provision does not affect the previous operation of these provisions unless the statute specifically says that the repealed provisions should be taken to have been not in the statute book at all. In this case there is no such provision in Tamil Nadu Act 40 of 1979. As a matter of fact, there is no provision in that Act affecting the operation of Tamil Nadu Act 40 of 1978 during the period before its repeal. In this view of the matter, even if the second suit is held to be maintainable, the petitioner is not entitled to succeed on merits. The Civil Revision Petition is therefore dismissed.


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