A debt must be subsisting on the date of filing an application under Section 15 of the Tamil Nadu Debt Relief Act, 1972, in order for the applicant to be entitled to the benefits of the Act.

K.A. Swami, CJ.

1. There is an unusual delay in representing the papers. Instead of troubling the respondent, on the question of condonation of delay in representing the papers, we wanted to satisfy ourselves about the merits of the case, as the appeal has been filed in time. There is a delay of 386 days in representing the papers. Hence the delay is condoned. We have heard the learned counsel for appellant on the merits of the appeal.

2. The one and the only contention urged before us is that the appellant is entitled to the benefits of the Tamil Nadu Debt Relief Act, 1972 (Tamil Nadu Act 38 of 1972) hereinafter referred to as the Act, therefore, he filed an application under Section 15 of the Act, that on the date of filing of the application the decree holder had not drawn the amount and the decree had no been fully executed. On the contrary, it was the contention of the decree holder that the application was filed only on 24. 1973; that before that date the decree was executed; that in execution of the decree the property of the judgment-debtor was sold in Court auction; that the auction purchaser deposited the amount; that the sale was confirmed; the possession was delivered and that the satisfaction of the decree was recorded, therefore, there was no decree and no debt subsisting on the date the application was filed.

3. The trial Court dismissed the petition holding that the petitioner/appellant was not a debtor. In the appeal, the learned single Judge came to the conclusion that even though the petitioner/appellant was a debtor and the trial Court had erroneously held that he was not a debtor, but on the date the application was filed, the decree had stood fully satisfied, therefore, there was no decree subsisting and there was no debt to be scaled down. The learned single Judge has followed the decision of a Division Bench of this Court in Vinsithurthan Chettiar v. The Government of Tamil Nadu , 95 L.W. 374 and distinguished a Full Bench decision of this Court in Bangaru Chettiar v. San Basha Sahib , 1976 (2) M.L.J. 171 (F.B).

4. In this background, the only point that arises for consideration is as to whether on the date the application was filed by the appellant under Sec. 15 of the Act the debt was subsisting. The Act was published in the Tamil Nadu Government Gazette on 15th December, 1972.

Clause (2) of Section 2 states: -

“ ‘debt’ means any liability in cash or kind, whether secured or unsecured, due from a debtor whether payable under a decree or order of a civil or revenue court or otherwise, but does not include rent as defined in clause (9)”

Clause 3 of Section 2 defines: -“debtor” means any person from whom any debt is due”

The proviso and explanation thereto are not relevant for our purpose in this case. Section 15 (1) of the Act provides thus:

“Where before the publication of this Act, a Court has passed a decree for the repayment of a debt, it shall, on the application of any judgment-debtor who is a debtor within the meaning of the Act, or in respect of a Hindu joint family debt, on the application of any member of the family whether or not he is the judgment-debtor or on the application of the decree-holder within six months from the date of publication of this Act, apply the provisions of this Act to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (Central Act V of 1908) amend the decree accordingly or enter satisfaction, as the case may be:

Provided that all payments made or amounts recovered, whether before or after the publication of this Act in respect of any such decree shall first be applied in payment of all costs as originally decreed to the creditor.”

No doubt, in the instant case, the petitioner/appellant did make an application within six months from the date of publication of the Act, but on the date he filed the application there was neither a decree existing nor a debt was due. In order to avail the benefit of the Act,