Decided on December 01,1967



- (1.) This is an appeal by a creditor who had applied under S.8 of Act 31 of 1958 for the fixation of the amount due from the respondent to this appeal. An order was passed on 19-2-1960 fixing the amount due from the respondent. It appears the judgment debtor did not pay the instalment as provided by S.4 of Act 31 of 1958. Execution was therefore taken by the appellant by an execution petition dated 6-7-1963. Objection was then taken by the respondent to the quantum of the amount recoverable from him. The objection indicates that reliance has been placed on S.5 of Act 31 of 1958 as amended by Act 2 of 1961. This objection was upheld by the execution court and the execution petition was dismissed. Though the creditor appealed against the decision, the appeal too turned out to be futile.
(2.) On behalf of the creditor appellant, it is contended that in any view of the matter there is no justification for dismissal of the execution petition. Secondly it is urged that the judgment debtor is not entitled to the benefit of S.5 of Act 31 of 1958 as amended by Act 2 of 1961. We shall deal with the second contention first. In C. M. A. 72 of 1966 the question whether an order passed under Act 31 of 1958 before the amendment to that Act has been made by Act 2 of 1961 will be a bar to the claims under S.5 of the Act as amended, has been considered and we have held that there cannot be any such bar. The judgment debtor will therefore be entitled to the benefit of S.5 as amended. We may note that the order dated 19-2-1960 was passed at the instance of the creditor and therefore the ban imposed on a fresh application under S.8 of Act 31 of 1958 by sub-s.(3) thereof reading as follows: " 8 (3) An application made by a debtor under sub-s.(1) shall be dismissed if the debtor fails to deposit with the court, before which such application is pending, the amount of any instalment which on his admission is payable by him under the provisions of this Act and has accrued due and no second application for the same purpose shall be entertained." does not arise in this case.
(3.) We consider that the orders passed by the execution court and the appellate court dismissing the execution application must be set aside. We do so. We also hold that the respondent is entitled to the benefits of S.5 of Act 31 of 1958 as amended by Act 2 of 1961. His objection will be treated as an application under S.8(1) and the amount due under the Act by applying the provisions of S.5 as amended will be determined by the court and after such determination the execution court will take steps for the realisation of the amount so fixed. The decree holder may seek amendment to the execution petition in conformity with the order passed under S.8. This Second Appeal is ordered as above. No costs.;

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