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Duraiswami Pradayachi and anr. Vs. Thangavel Padayachi - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberC.R.P. 2308 of 1981
Judge
Reported inAIR1983Mad286
ActsTamil Nadu Debt Relief Act, 1979 - Sections 16 and 18
AppellantDuraiswami Pradayachi and anr.
RespondentThangavel Padayachi
Appellant AdvocateK. Sengottian, Adv.
Respondent AdvocateN. Vanchinathan, Adv.
Excerpt:
- - the order of the court below will stand set aside, but subject to the condition that the decree already passed would be executable, under act xl of 1979 as well......after act xl of 1979 came into force, he filed a petition for reopening the suit for having the suit claim 'scaled down in accordance with the terms of act xl of 1979'. overruling the objection of the judgment-debtors, the court below has ordered the amendment of the decree and hence the revision by the judgment-debtors.2. the promissory note executed by the petitioners in favour of the respondent was for rs. 4,200. however, while filing the suit, the respondent restricted the suit claim to one-half of the principal sum and interest due thereon as per s. 7 (1) (b) of act xl of 1978, read with explanation (2) annexed thereunder. the defendants submitted to a decree and accordingly, a decree was passed on 8th june 1979.3. such being the case, it is not open to the decree-holder to ask.....
Judgment:
ORDER

1. The judgment-debtors are the revision petitioners. The respondent (decree-holder) has obtained a decree against the petitioners in terms of Act XL of 1978. Subsequently, after Act XL of 1979 came into force, he filed a petition for reopening the suit for having the suit claim 'scaled down in accordance with the terms of Act XL of 1979'. Overruling the objection of the judgment-debtors, the court below has ordered the amendment of the decree and hence the revision by the judgment-debtors.

2. The promissory note executed by the petitioners in favour of the respondent was for Rs. 4,200. However, while filing the suit, the respondent restricted the suit claim to one-half of the principal sum and interest due thereon as per S. 7 (1) (b) of Act XL of 1978, read with Explanation (2) annexed thereunder. The defendants submitted to a decree and accordingly, a decree was passed on 8th June 1979.

3. Such being the case, it is not open to the decree-holder to ask for amendment of the decree under Act XL of 1979. It is, no doubt, true that decrees passed under Act XL of 1978 can be reopened and amended suitably under Act XL of 1979. But that will not mean that the suit itself can be reopened. As already stated, the suit claim itself was for one-half of the principal amount and interest thereon, and, since that has been decreed in full, the decree holder is not entitled to go further and say that by reason of Act XL of 1979, he is entitled to enlarge the scope of the suit itself. It would have been a different thing if he had laid the suit for the entire amount, but the suit had been decreed only for half the principal and interest thereon under Act XL of 1979. But, such is not the case here. The suit claim itself was restricted to one-half of the principal and interest thereon, and to such a case, Section 16 will not have full application. Learned counsel for the respondent states that unless the decree is amended the respondent will not be entitled to proceed with the execution of the earlier decree. This is not a correct proposition, because where a prior decree does not call for amendment under the new Act, there is no bar under Act XL of 1979 for the execution of the decree. In face, it may be seen from the proviso to Section 18 of Act XL of 1979 that if the judgment-debtor fails to have the decree amended within sixty days under Act XL of 1979, then the execution proceedings can go on in respect of the decree already passed against him. Hence the recession has to succeed and will accordingly stand allowed. The order of the Court below will stand set aside, but subject to the condition that the decree already passed would be executable, under Act XL of 1979 as well. There will be no order as to costs.

4. Order accordingly.


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