Kuttalingom Ganapathy vs Lekshmana Beddiar

Koshi, J.—Two points were raised in this appeal against an order passed on a Debt; Relief petition by a successor Judge after reopening on review an order passed by his predecessor in office.

On 29-7-1111 a compromise decree was passed in O. S. 8 of 1111 on the file of the Nagarcoil District Court and from time to time the Defendants thereto had made part payments towards the decree debt, but there was still some balance outstanding when the Debt Belief Act came into force. On 20-7- 1116 Defendant a filed an application seeking to avail of the provisions of Section 9(2)(b) of the said Act to pay off the balance decree-debt and pursuant thereto some moneys were deposited in Court. The first payment was on 28-9-1116 and the second on 30-1-1118 when the two years'' period prescribed by clause (b) of sub-Section (2) of Section 4 expired. These deposits did not cover the seventy per cent. payable under the said clause. The application was however allowed to remain on the file of the Court and on 1-8-1119 the Court passed an order fixing the balance due by the debtor and making the same payable within a definite period. Defendant 2 was dissatisfied with the order and he took the matter in appeal to the High Court in A. S. 401 of 1119. The decree-holder filed a memorandum of objections in that appeal. The learned Judges who heard the appeal dismissed the appeal, but the memorandum of objections was allowed to a limited extent. The operative portion of the judgment reads thus :

The calculations of the lower Court must be recast to allow the correction of the rate of interest before decree. We remand this matter for that purpose. The time for payment by the Defendant is extended to 4 weeks after notice of the modified figure. Save as aforesaid, this appeal is dismissed with coats and the memorandum of objections is partly allowed without costs.

When the case went back to the lower Court it was-posted for the patties it file statements as per the High Court''s decision. The decree-holder filed his statement on 8-7-1122 .ind Defendant 2 filed his statement on 26-7-1122. Both these statements were filed within the time allowed by the Court. The Court however on 22-5-1128 accepted the decree-holder''s statement and passed an order in the following terms :

Decree holder has filed this statement in pursuance of the remand order. No objection has been filed to this statement, Accepted. Notice to Defendant to deposit the duo amount within four weeks of the service of notice.

In form this order is in conformity with the judgment of the High Court in A. S. 401, but in substance it went against it in two respects. In the first place, Defendant 2 had filed a statement in obedience to the Court''s direction, but the Court overlooked it in passing its order. Secondly, the decree holder''s statement was not one prepared in accordance with the directions of the High Court. In preparing his statement the decree-holder proceeded as if Defendant a had forfeited his right to the benefit conferred by the Debt Relief Act and that he (the decree-holder) was in consequence entitled to the entire balance due under the decree. The Court overlooked that the decree-holder was trying to circumvent the High Court''s decision. When notice of the order dated 82.5-1123 was served on him, Defendant 2 filed an application to review that order. That petition came up before the present District Judge and after due notice to the decree-holder and after hearing both sides the learned Judge admitted the review as per his order dated 23-1-1125. He then proceeded to dispose of the matter afresh on the merits and passed the order giving rise to the present appeal. The learned Judge wanted to have the balance amount fixed in the light of the High Court''s decision in A. S. 401 and directed the decree-holder to file a statement first.

The points raised in the appeal are (1) that the order admitting the review is ultra vires the powers of a successor Judge and (2) that his final order is bad on merits. From the facts set out in the preceding para it is clear that the order dated 22-5-1123 accepting the decree-holder''s statement went against the High Court''s decision and in our opinion that error is one apparent on the face of the order. The successor Judge was therefore under Order 47, Rule 1, CPC (CPC) competent to admit the review petition.

A subsidiary point raised in the argument concerning the order admitting the review was that the review petition was filed long out time. Our answer to it is two-fold. In the first place, the learned Judge who admitted the review had applied his mind to this question of and he thought this to be a proper case where the delay should be condoned. We are, not prepared to say that the learned Judge exercised his discretion wrongly. Further, the point that the review petition was barred by time is not raised in the Memorandum of appeal before us. An Appellant is no doubt entitled to challenge the correctness of an interlocutory order in an appeal against the final order, but in order to entitle him to do that he must set forth that as a ground of objection in his memorandum of appeal. See Section 83, Travanoore Code of Civil Procedure

In this view of the matter we cannot find our way to hold that there is any substance in the first point raised before us.

The argument on the second point was that Defendant 2 had forfeited his right to the benefits conferred by the Debt Relief Act by reason of his failure to comply with the conditions imposed by the particular provision of the Act he invoked. It was pointed out that he should at least have paid seventy per cent of the admitted debt within the period of two years prescribed by the section. We are afraid it is too late in the day to raise that contention now. The original order the Court passed on 1-3-1119 wherefrom A. s. 401 of 1119 arose was itself after the last day of Chingvm 1118 and the decree holder not having chosen to urge this point on that occasion in the Court below or before the High Court he cannot now be allowed to raise it. We are now concerned with how to implement the High Court''s decision in A. B. 401 of 1119. That was also the function'' which the Court below was trying to discharge when it passed the order under appeal. We cannot therefore accede to the argument that we should decide the point raised as if it is not even impliedly covered by the prior decision in A.S. 401. The second point has also therefore to be decided against the Appellant.

In the result the appeal fails and it will stand dismissed with costs.

As this controversy has been long pending we direct the learned Judge below to expedite the disposal of the matter and to see that the Respondent pays into Court at least the admitted amounts within two weeks of the receipt of the records from here by that Court. Further amounts, if any, should be paid within two weeks from the date of the lower Court fixes the same.

Order accordingly.