Skip to content


Rama Reddiar Vs. Raja Reddiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1982)1MLJ288
AppellantRama Reddiar
RespondentRaja Reddiar
Cases ReferredL. Rs v. Joint Director Of Consolidation
Excerpt:
.....satisfied in full before the date of publication of this act and as the decrees covered in these civil revision petitions have not been fully executed, the bar under section 33(2) will not operate. where the debt has not ripened into a decree, how much debt should be scaled down is provided under section 17. from the scheme of the' act, it is clear that in all those cases where the debt or the decree has not been fully and' factually discharged or satisfied, then application for scaling down such debts or decrees can be made under act xl of 1979. such being the scheme of the act, section 33(2) has to be interpreted against this background and so interpreted, it would only mean that only in those cases where the decree passed has been executed and full satisfaction recorded, the bar..........of act xl of 1979 to amend the decrees. the trial court came to the conclusion that when once the decrees are executed or satisfied, the petitioners cannot amend the decrees as per section 33 of act xl of 1979, and as the petitioner in c.r.p. no. 1122 of 1980 has executed the decree and realised a sum of rs. 500 on 21st april, 1979, rs 300 on 19th june, and rs. 4,000 on 2nd july, 1979 and the petitioner in c.r.p. no. 1126 of has executed the decree and realised a sum of rs. 100 in e.a. no. 16 of 1979, and a further sum of rs. 20) in e.a. no. 54 of 1979, the petitioners are barred from filing the present petitions to amend the decrees by virtue of the provision contained in section 33(2). against that order the petitioners have filed the present civil revision petitions.2. the learned.....
Judgment:
ORDER

P. Venugopal, J.

1. The decree-holders are the petitioners, before this Court and the judgment-debtors are the respondents. The petitioners, each filed a suit and obtained a decree on 16th October, 1978 and 5th January, 1979, for half of the principal amount and half of the interest due as per Act XL of 1978. When Act XL of was repealed by Act XL of 1979 they became entitled to get the full amount of principal and interest due. They, therefore filed petitioners under Sections 31 to 33 of Act XL of 1979 to amend the decrees. The trial Court came to the conclusion that when once the decrees are executed or satisfied, the petitioners cannot amend the decrees as per Section 33 of Act XL of 1979, and as the petitioner in C.R.P. No. 1122 of 1980 has executed the decree and realised a sum of Rs. 500 on 21st April, 1979, Rs 300 on 19th June, and Rs. 4,000 on 2nd July, 1979 and the petitioner in C.R.P. No. 1126 of has executed the decree and realised a sum of Rs. 100 in E.A. No. 16 of 1979, and a further sum of Rs. 20) in E.A. No. 54 of 1979, the petitioners are barred from filing the present petitions to amend the decrees by virtue of the provision contained in Section 33(2). Against that order the petitioners have filed the present civil revision petitions.

2. The learned Counsel for the petitioners contended that Section 33(2) will apply only in those cases where the decree has been executed in full or satisfied in full before the date of publication of this Act and as the decrees covered in these civil revision petitions have not been fully executed, the bar under Section 33(2) will not operate.

3. The learned Counsel for the respondents, relying on the decision of the Supreme Court in Sher Singh (dead) by L. Rs v. Joint Director Of Consolidation : [1978]3SCR982 contended that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by subordinate Courts and it is not open to this Court, while exercising its jurisdiction under Section 115, Civil Procedure Code, to correct errors of fact or even errors of law, unless the errors have relation to the jurisdiction of the Court to try the dispute itself, and as there is no such error of jurisdiction in the order passed by the trial Court, there is no scope for this Court exercising its revisional jurisdiction under Section 115, Civil Procedure Code.

4. The petitioners obtained the decrees on 16th October, 1978 and 5th January, 1979 when Act XL of 1978 was in force. In view of the provisions contained in Act XL of 1978 the petitioners were able to get a decree for half of the principal amount and half of the interest due. Act XL of 1978 was repealed by Act XL of 1979 under which the petitioners became entitled to get a decree for the full amount of the principal and the interest due. After the coming into force of Act XL of 1979, the petitioners filed applications for amendment of the decree. The question to be considered is whether the bar under Section 33(2) operates only when the decree has been executed in full or even in those cases where a decree has been executed only partially and some amount has been realised under the decree.

5. Act XL of 1979 received the assent on 11th June, 1979, and was published in the Tamil Nadu Government Gazette on 13th June, 1979. Section 33(2) provides that every proceeding made or taken and pending before the date of publication of Act XL of 1979 shall abate. In cases where decrees have been passed before the publication of this Act and if it is executed through Court, it should be stayed under Section 18 on an application made by the judgment-debtor. After getting stay of the execution of the decree the judgment-debtor should file an application under Section 15 for amendment of the decree. The proviso to Section 16 stipulates that while amending the decree, all payments made or amounts recovered before or after the date of publication of Act XL of 1979 in respect of the decree shall first be applied in payment of all costs as originally decreed to the creditor. Where the debt has not ripened into a decree, how much debt should be scaled down is provided under Section 17. From the scheme of the' Act, it is clear that in all those cases where the debt or the decree has not been fully and' factually discharged or satisfied, then application for scaling down such debts or decrees can be made under Act XL of 1979. Such being the scheme of the Act, Section 33(2) has to be interpreted against this background and so interpreted, it would only mean that only in those cases where the decree passed has been executed and full satisfaction recorded, the bar under Section 33(2) will come into play. In the instant case, as the decree obtained by the petitioners has not been executed and full satisfaction recorded, the bar under Section 33(2) will not operate and the petitioners are entitled to have the decree amended as per the provisions contained in Section 16 of the Act. Revisional jurisdiction of this Court has to be exercised as there is failure of the Court below to exercise jurisdiction under Section 16 of the Act XL of 1979.

6. In the result, the civil revision petitions are allowed and the cases are remitted back to the trial Court for amendment of the decrees as provided under Act XL of 1979. Parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //