V. RAMASWAMI AYYANGAR AND OTHERS v. T. N. V. KAILASA THEVAR
Citation: [1951] 1 S.C.R. 292; 1951 INSC 15
Court: Supreme Court of India
Bench: MEHR CHAND MAHAJAN , BIJAN KUMAR MUKHERJEA, SIR SYED FAZL ALI, N. CHANDRASEKHARA AIYAR
Judgment date:
Case summary
1951 INSC 15. Supreme Court of India judgment dated 1951-03-05. V. RAMASWAMI AYYANGAR AND OTHERS v. T. N. V. KAILASA THEVAR. Read the judgment and case...
Judgment text
292 SUPREME COURT REPORTS [. 1951] on rerord. As already pointed out, there has been no such error in the present case; on the other hand, it seems to us that. on both the previous occasions, the Chief Presidency Magistrate was right in holding that the accused was not guilt)' of any offence under sections 25 and 26 of the Indian Merchant Shipping Act. The order of the High Court ·is set aside and that of the Chief Presidency Magistr:tte is restored. The accused will stand acquitted of the charge. Order set aside. Agent for the appellant : P. K. Chatteriee. Agent for the respondent : l. N. Shroff for P. K. Bose. V. RAMASWAMI AYYANGAR AND OTHERS fl. T. N. V. KAILASA THEVAR. [SAIYID FAZL Au, MEHR CHAND MAHAJAN, MUKHERJEA and CHANDRASEKHARA AIYAR JI. ] Madras Agriculturists' Relief Act (IV of 1938), ss.
7, 19-Joint debtors-Application for scaling down made by some only-Decree for full amount against ex parte defendants and for reduced amount against others-Legality and effect-Indivisibility of debt -Payment of full amount as scaled down-Whether extinguishes decree against all. Under the Madras Agriculturists' Relief Act, 1938, a mortgage decree can be scaled down in favour of some of the judgment debtors alone, while as regards the others it is kept intact. In a suit to enforce a mortgage executed by defendant No. 1 on his own behalf and on behalf of defendants Nos. 2 to 7, the defendant No. 1 remained ex parte, and the others contested the suit. A decree for Rs. 1,08,098 was passed by ~ trial court. The Madras Agriculturist' Relief Act, 1938, was passed during the pendenry of an appeal and cross appea~ and on the application of defendants Nos. 2 to 7 under the said Act the amount of the decree was scaled down to Rs. 49,255 so far as defendants Nos. 2 to 7 were concerned.
So far as defendant No. 1 was coriccrned the decree for the full amount rcmainCd as it was. Defendant No. 1 thereupon applied for scaling down, but his application was rejected. Defendants Nos. 2 to 7 dcopsitcd certain amounts and got their properties released. Defendant No. 1 deposited the balance of the amount that remained due under the decree as scaled down on the application of defendants Nos. 2 to 7, and prayed that full satisfaction of the decree may be recorded. · The Subordinate Judge rejected this application but the High Court, on appeal, held that defendant No. I was entitled to the benefit of the scaling down in favour of defendants Nos. 2 to 7, as the mortgage debt was one and indivisible.
On further appeal : Held, that the ratio dccidendi of the cases in which it was held that a purchaser of mortgaged properties was entitled to the benefit of a decree which has been scaled down, even diough the purchaser himself was not an agriculturist was not applicable to the present case. According to the plain provisions of the Act, there was no objection to a decree for a reduced amount being passed against an agriculturist debtor, while the same relief is not given to his co-debtors, and defendant No. 1 was not entitled to claim the benefit of ·the scaling down of the decreC-: debt in favour of defendants Nos. 2 to 7. Judgment of the Madras High Court reversed. Ramiet v. Srinivasiah [(1940) 2M. L. J. 872] referred. to. Arunachalam Pillai v. Seetharam [(1941) I M. L. J. 561'!. Pachigola v. Karatam [1242) 1 M. L. J. 506], Subramaniam v. Ramchandm [ (1946) :?. M. L. J. 429] distinguished. CIVIL APPELLATE JuRISDIC'fION: : Appeal (Civil Appeal No.
32 of 1950), from a judgment and order of the J1igh Court of Judicature at Madras dated 5th January, 1948, reversing an order of the District Judge of East Tanjore in aμ application under s. 47 and 0. XXI, r. 2, of the Civil Procedure Cpde. R. K. Kesava Aiyangar (T. K. Sundal'araman, with him) for the appellants. S. Ramachandra Aiyar for the respondant. 1951. March 5. The judgment of the Court was delivered by MuKHERJEA J. -This appeal is on ·behalf of the decree-holders in a mortgage suit and it is directed against a judgment and order of a Division Bench of the Madras High Court dated January 5, 1948, by [1951] which the learned Judges reversed, on appeal, on order of the District Judge of East Tanjore made in a prc>-ceeding under section 47 and Order 21, . rule 2, of the Civil Procedure Code. The materials facts are not in controversy and may be briefly stated as follows.
The appellants before us are the representatives of three original plaintiffs who, as mortgagees, instituted a suit (being O. S. No. 30 of 1934) in the Court of the District Judge, East Tanjore, for enforcenient of a mortgage, against the present respondent, who was defendant No. 1 in the suit, and six other persons. The mortgage bond, upon which· the suit was' brought, was executed by defendant No. 1 for himself and his minor undivided brother, the defendant No. 2, and also as authorised agent on behalf of defendants 3 to 7 who were interested in a joint family business. The suit was contested by all the defendants except defendant No. 1, against whom it proceeded ex parte, and there was a preliminary decree passed on May 15, 1937, by which a sum of Rs. 1,08,098 was directed to be paid by defendant No.
l and defendants 3 to 7, in default of which the plaintiffs were declared entitled to apply for a firial decree for sale of the mortgage properties, and the suit was dismissed against defendant No. 2. Against this decree, two appeals were taken to the Madras High Court, one by defendants 3 to 7-being Appeal No. 48 of 1938-who contended that the mortgage was not binding on them or on their shares in the joint family property; and the other by the plaintiffs-being Appeal No. 248 of 1938-who challenged the propriety of the judgment of the trial judge in so far as it dismissed ·their claim against defendant No. 2. During the pendency of these appeals; the Madras Agriculturists' Relief Act (Act IV of 1938) came into force and applicat'ions were made by defendants 2 to 7 to the High Court, praying that in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the Act. The defendant No.
· 1, who did not appear at any stage of the proceeding, did not make any such application. The H1gh Court forwanled these applications to the lower court for_ enquiry i nro the matrer and for return, with its finding on the question as to whether the applicants were agriculturists, and if so. to what extent, the decretal dues should be scaled down. The District Judge, after making enquiries, submitted- a finding that the applicants were agriculturists and that the debt, if scaled down, would amount to Rs. 49,255 with interest thereupon at 6% per annum from 1st October, 1937, exclusive of costs. On receipt of this finding, the appeals were set down for final hearing and by their judgment dated -March 25, 1942, the learned Judges of the High Court accepted the finding of the court below and held that defendants 2 to 7 were entitled to have the debts scaled down; but as no application had been made on behalf of defendant No. 1, he was held entitled to no relief under the Act.
A decree was drawn up in accordance with_ the judgment. The amount due by defendants 2 to 7 was stated to be Rs. 49,255 with interest . thereon at 6% per annum; while, so far as defendant No. 1 was concerned, the decree of the trial judge was affirmed subject to a slight modification regarding - the rate of interest. The -defendant No. 1 thereupon filed an application in the court of the District Judge, East Tanjore, claiming relief under the Agriculturists' Relief Act alleging that he too wa~ an agriculturists and hence entitled to the benefits of the Act. The application was dismissed -on February 25, 1943, on the ground that as the decree had already been passed by the High Court definitely negativ'mg his claim to any relief under the Agri peal. · Appeal allowed. Agent for the appenants : M. S. K. Sastri. Agent for the respondent : M. S. K. AiY"F·
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