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R.M.A.R.A. Adaikappa Chettiar Vs. R. Chandrasekhara thevar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1948)50BOMLR18
AppellantR.M.A.R.A. Adaikappa Chettiar
RespondentR. Chandrasekhara thevar
DispositionAppeal allowed
Excerpt:
.....created by special statute, in dispute-ordinary court entitled to entertain such dispute-right of appeal not in terms conferred by special statute-whether appeal from order of court competent-civil procedure code (act v of 1908), sections 47 and 96-madras agriculturists' relief act (mad. iv of 1938).;where a legal right is in dispute and the ordinary courts of the country are seized of such dispute, the courts are governed by the ordinary rules of procedure applicable thereto, and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.;nagappa v. annapoorani [1941] mad. 261 f.b., disapproved.;secretary of state for india v. chelikani rama rao (1916) l.r. 43 i.a. 192 : s.c...........court of madras, both dated january 27, 1942, the first setting aside in appeal an order of the subordinate judge of ramnad at madura dated july 25, 1938, and the second setting aside in revision an order of the same subordinate judge made on february 9, 1939.2. the substantial question for decision in these appeals is whether the respondent s an agriculturist within the meaning of the madras agriculturists relief act (mad. iv of 1938), hereinafter referred to as 'the act.' but the appellant has argued as a preliminary point that, assuming the respondent to be an agriculturist within the meaning of the act, the orders of the high court which are under appeal were incompetent and that this appeal should succeed on that ground. it will be convenient to deal with this point first.3. the.....
Judgment:

Simonds, J.

1. These are consolidated appeals by special leave from two orders of the High Court of Madras, both dated January 27, 1942, the first setting aside in appeal an order of the Subordinate Judge of Ramnad at Madura dated July 25, 1938, and the second setting aside in revision an order of the same Subordinate Judge made on February 9, 1939.

2. The substantial question for decision in these appeals is whether the respondent s an agriculturist within the meaning of the Madras Agriculturists Relief Act (Mad. IV of 1938), hereinafter referred to as 'the Act.' But the appellant has argued as a preliminary point that, assuming the respondent to be an agriculturist within the meaning of the Act, the orders of the High Court which are under appeal were incompetent and that this appeal should succeed on that ground. It will be convenient to deal with this point first.

3. The facts relevant to the determination of this question are these :

4. On September 15, 1925, a final decree was passed in a mortgage suit, which was original suit No. 5 of 1921 on the file of the Subordinate Judge of Ramnad at Madura, in favour of the appellants or their predecessors in title against the predecessor in title of the respondent. For convenience, the parties interested from time to time in the mortgage decree will in this part of this judgment be referred to as the 'decree-holders' and the person interested in the equity of redemption as the 'judgment-debtor'. Execution Proceeding No. 79 of 1933 was taken out to enforce the final decree and certain of the mortgage properties were advertised for sale, but before a sale had been effected the Act was passed in March, 1938. On July 8, 1938, the judgment-debtor made Execution Application No. 237 of 1938 to the said Subordinate Judge, which was intituled E.A. No. 237 of 1938 in E.P. No. 79 of 1933 in O.S. No. 5 of 1921, and was expressed to be made under Sections. 20, 19 and 8 of the Act, and. Sections. 47 and 151 of the Code of Civil Procedure. The relief prayed was that the execution proceedings in E.P. No. 79 of 1933 and the auction sale then pending be stayed until the disposal of the question of the extent of liability of the petitioner for the debt under Section 19 of the Act and a declaration that the debt was wholly discharged under Section 8 of the Act. In order to appreciate the nature of this relief it is necessary to notice that under Section 8 of the Act the debts of an agriculturist can be scaled down. Under Section 19 it is provided, so far as material for the present purpose, that where a Court has passed a decree for the repayment of a debt, it shall, on the application of any judgment-debtor who is an agriculturist apply the provisions of the Act to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly, or enter satisfaction as the case may be. Section 20 provides that every Court executing a decree passed against a person entitled to the benefits of the Act shall, on application, stay the proceedings until the Court which passed the decree has passed orders on an application made or to be made under Section 19, but a proviso to the section enacts that where within 60 days after an application for stay has been granted the judgment-debtor does not apply to the Court which passed the decree for relief under Section 19, the decree shall be executed as it stands.

5. On July 25, 1938, Execution Application No. 237 of 1938 came before the Subordinate Judge who dismissed it summarily on the ground that the judgment-debtor was not an agriculturist. From that order an appeal was brought to the High Court of Madras and that Court directed the learned Subordinate Judge to submit a finding whether the judgment-debtor was an agriculturist and, if so, to what relief he was entitled under the Act. On the matter coming again before the Subordinate Judge on remand he heard evidence and delivered a detailed judgment on February 9, 1939. He found that the judgment-debtor was not an agriculturist within the meaning of the Act and was not entitled to any scaling down of the debt under the Act. Meanwhile, namely, on August 3, 1938, the judgment-debtor had made an independent application I.A. No. 361 of 1938 in O.S. No. 5 of 1921 to the said Subordinate Judge asking that the preliminary and final decrees in the said mortgage suit be amended in accordance with the provisions of the Act and that the debt might be declared to have been wholly discharged. On February 9, 1939, after recording his finding in E.A. No. 237 of 1938 the learned Judge passed an order dismissing I.A. No. 361 of 1938, in view of his finding in E.A. No. 237 of 1938. The reasons for making this further application I.A. No. 361 of 1938 are not disclosed by the record, but, presumably, the advisers of the judgment-debtor thought that it might be held that two applications to the Court were necessary, one under Section 19 to the Court which passed the decree, and another under Section 20 to the Court executing the decree, as would be the case if the two Courts were different. The danger of limitation running under the proviso to Section 20 had to be considered. But, as in the present case the two Courts were the same, and it is clear that both the Subordinate Judge and the High Court in considering whether the judgment-debtor was an agriculturist within the meaning of the Act were treating Execution Application No. 237 of 1938 as properly raising questions under Sections 8 and 19 of the Act as well as under Section 20, Application No. 361 of 1938 appears to have been redundant.

6. The judgment-debtor presented an appeal from the order of February 9, 1939, made in I.A. 361 of 1938, and that appeal came before the High Court of Madras at the same time as the appeal from the order of July 25, 1938, on its restoration with the findings of the Subordinate Judge on the matters remanded. But when the two appeals came before the High Court, that Court was faced with a judgment of a full bench of the Court delivered in Nagappa v. Annapoorani [1941] Mad. 261 in which it had been held that no appeal lay from an order passed under Section 19 of the Act. The High Court held that in view of this decision the appeal against the order of February 9, 1939, which had been made under Section 19 of the Act, was incompetent; but they had acceded to an application of the judgment-debtor to be allowed to convert his appeal into a Civil Revision Application, and, holding that the Subordinate Judge had been guilty of material irregularity within the meaning of Section 115 of the Civil Procedure Code, they set aside his order of February 9, 1939, in revision. The Court nevertheless' dealt with the appeal against the order of July 25, 1938, as an appeal, and directed that the order of the Subordinate Judge of July 25, 1938, made in E.A. No. 237 of 1938, be set aside and the application remanded, and directed the Subordinate Judge to restore the said application to its original number in the Register, and to proceed to dispose of it according to law and in the light of the observations and directions contained in the judgment of the High Court. As the High Court, as hereinafter noticed, had expressed the view that the judgment-debtor had proved that he was an agriculturist within the meaning of the Act, these directions involved that the Subordinate Judge would deal with the execution proceeding before him under Section 8 and 19 of the Act.

7. Before considering the propriety and validity of the orders made by the High Court in the two appeals presented to them it is necessary, in the first place, to determine whether the decision of the full bench was right. The facts in the case before the full bench can be distinguished on the ground that in that case there were no proceedings in execution of the decree such as exist in the present case, but the Court expressed the view that the existence of execution proceedings would not make any difference. The view taken by the full bench was that Section 19 of the Act conferred a particular right upon a judgment-debtor and that, as the Act conferred no right of appeal from an order of the Court made under the section, no appeal was competent. The Court relied to some extent on the decision of this Board in Rangoon Botatoung Company Ld. v. The Collector Rangoon 14 Bom. L.R.833 . That case, however, has been explained in later decisions of the Board as depending on the fact that the proceedings were from beginning to end ostensibly and actually arbitration proceedings. Their Lordships are not in agreement with the view of the full bench of the High Court of Madras, The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto, and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal-see Secretary of State for India v. Chelikani Rama Rao 18 Bom. L.R. 1007 and Hem Singh v. Basant Das 38 Bom. L.R. 479 .

8. The question therefore to be considered in the present ease is whether a right of appeal from the orders in question was conferred by the Civil Procedure Code. The order of February 9, 1939, was not made in execution proceedings but it was made in a suit, and, in their Lordships' opinion, it amounted to the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, namely, whether the judgment-debtor was an agriculturist and entitled therefore to have his debt discharged or reduced under the Act. In their Lordships' opinion the order was a decree within the meaning of Section 2(2) of the Civil Procedure Code and an appeal lay under Section 96 of the Code. That being so the High Court was wrong in entertaining an application in revision, since under Section 115 of the Code there is no jurisdiction in revision where an appeal lies. The order of the High Court setting aside the order of the Subordinate Judge of February 9, 1939, will have to be set aside, but this is not of any practical consequence since the application on which the order was made was redundant. The appeal against the order of July 25, 1938, was rightly entertained. That order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code, and an appeal therefore lay under Section 96.

9. Their Lordships then proceeded to consider the case on its merits and allowed the appeal.


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