The main legal point established is that the judgment debtor should have the opportunity to raise the plea of debt relief under Act 17/1977, despite not doing so at the trial stage, due to the retrospective effect of the Act.

1. Judgment-debtor raised a question in execution to the effect that he is entitled to the protection under the Kerala Debt Relief Act, 1977 (Act 17/1977). According to the judgment-debtor, the debt he owed to the decree-holder is less than Rs.3,000/- and since he is having only income not more than Rs.3,000/-, the decree is not executable. He submitted that the provisions of Act 17/1977 have to be applied and on application, the court has to hold that the judgment debtor is not liable to pay any amount. The Execution Court considered this question. The Execution Court found that the judgment-debtor ought to have raised this point at the trial stage and as he has not raised this point at the trial stage, he cannot raise it before the Execution Court.

2. In reply to this argument, the counsel for the revision petitioner submitted that the decree was passed in this case on 31-1-1977, which was a decree for realisation for an amount of Rs.2,606.95. Act 17/1977 was published in the official gazette on 12-8-1977. By the repealing provision, the earlier Ordinances were repealed. By S.13 of Act 17/1977 Ordinance 9 of 1977 which had repealed Ordinance 1/1977 was repealed. Further the provisions of Act 17/1977 inclusive of the repealing provisions contained in S.13 have been given retrospective effect from 13th January, 1977.13-1-1977 is the date on which Ordinance 1/1977 had come into effect. Counsel for the respondent submitted that even though Act 17/1977 was promulgated by publishing it in the official gazette only on 12-8-1977 by virtue of the repealing provision, viz., by S.13 and by virtue of the deeming provision of the Act it has to be deemed that Act 17/1977 was in force on 13-1-1977 and so when the decree was passed it has to be deemed that the Act was in force.

3. Counsel relied on 1978 K.L.T. 508 (Ahamed v. Usha Trading Corporation) wherein it is stated that "the effect of this retrospective repeal and re-enactment is to create a legal fiction that Ordinance 1 of 1977 had never come into effect and that the provisions of Act 17 of 1977 were in force from 13-1-1977 onwards". Counsel for the respondent submitted that this legal fiction has to be given effect to in full and if it is given effect to in its entirety without stopping it in the mid-way the defendant ought to have raised the contention at the trial stage itself that the debt has been wiped off under Act 17/1977.

4. Two questions arise from the factual situations unfolded in the case. One question is whether a debtor who did not raise the plea of protection under Act 17/1977 is completely barred to raise it in execution. The second question is whether the Execution Court can hold that in a decree which has been passed on 31-1-1977 a defence which was not at that time really available ought to have been taken on the basis of the retrospective operation of Act 17/1977 which states that such an Act came into force on 13-1-1977.

5. I do not want to investigate the first question since I feel that on the second question the court below has gone wrong and that the matter has to be remitted for fresh consideration. The court below has considered the matter applying the principles of res judicata. The fundamental points to be kept in mind in applying the principles of res judicata have not been adverted to by the court below. In fact those principles have not been kept in mind when the court below applied the rule of res judicata. In a decision in C.R.P.No.458/88 =1989 (2) KLT 264 I had occasion to consider under what all circumstances the principles of res judicata can be applied. I have referred to in that decision, the observations of the House of Lords in a decision reported in New Brunswick Rail Co. v. British and French Trust Corporation Ltd. (1939) A.C.I) where the House of Lords observed:

"the doctrine of estoppel (per rem judicatam) is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, i