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Momammad Abdul Khader Ibrahim Sahib Vs. Chidambaram Mudaliar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal Nos. 383 and 384 of 1966
Judge
Reported in1969(2)LC266(SC)
ActsMadras Agriculturists Relief Act, 1949 - Sections 19
AppellantMomammad Abdul Khader Ibrahim Sahib
RespondentChidambaram Mudaliar
DispositionAppeal dismissed
Excerpt:
- - these decrees were then scaled down by an order of the court on march 5, 1959. appeals to the district court and the high court failed and credit was also given while scaling down the debts for repayment ment to the mortgagee. sub-section 1, however, is clearly applicable. in our judgment they must clearly be taken into account because unless they were so taken into account the mortgagee would recover the amount twice over. with this modification which does not affect the parties before us, the appeals must fail and they will be dismissed with cost......no claim for relief was put forward in the suit under this act. after the merger of pudukottai state, madras merger states act 35 of 1949 was passed & the madras agriculturists relief act was extended to pudukottai state from jan. 1, 1950. section 6 of the act 35, 1949 saved the application of the old act when proceedings under it had commenced.3. the original mortgager then filed two applications to scale down the decrees. the first respondent acted as his agent in the court. he did not claim any relief personally. these applications were rejected. the appeal was not pursued after the original mortgagor died. the decreeholder then assigned the decree to the present appellant. some payments were made by the original mortgagor also before the assigment of the decree.4. on january 11,.....
Judgment:

Hidayatullah, C.J.

1. These are two consolidated appeals filed by the appellant against the judgment and order, March 13, 1964 of the High Court of Madras. The facts are these: one V.C. Chidambaram Chettiar mortgaged certain lands in Pudukottai State by two usufructuary mortgages in favour of one P.K. Madhava Rao. The first mortgage was for Rs. 6000/- and was executed on September 25, 1942. The second was for Rs. 5000/- and was executed on January 30, 1944. The lands were not given in possession of Mahadeva Rao but were leased back to the mortgagor who was to pay Rs. 540/- per year for the first mortgage and Rs. 502/- per year for the second mortgage. This represented interest at nine per cent on the two mortgages including the land revenue which was to be paid by the mortgagee. There was a personal covenant to repay the amount in one year. The mortgagor made defaults in payment of the yearly rent after September 26,1944 in respect of the first lot of lands. He also paid nothing towards rent of the second lot of lands except a small amount in 1944-45. The mortgagee was required to file suits to recover the amount. In 1948 the mortgagee filed two suits, first for Rs. 6441/- and the second for Rs. 5681/10/-. The first respondent in these appeals was added as a second defendant because he had purchased a part of the lands from the mortgagor. The original mortgagor was the sole defendant when the suits were filed. The other purchasers from the original mortgagor was also added later. A preliminary decree was passed on December 17, 1948 was also and the final decree followed in March 1949.

2. Pudukottai State merged in Madras Presidency and the execution was levied after the merger. In Pudukottai State there was an Act (Pudukottai Agriculturists Relief Regulation XV of 1938) which gave relief to the agriculturist debtors No Claim for relief was put forward in the suit under this Act. After the merger of Pudukottai State, Madras Merger States Act 35 of 1949 was passed & the Madras Agriculturists Relief Act was extended to Pudukottai State from Jan. 1, 1950. Section 6 of the Act 35, 1949 saved the application of the old Act when proceedings under it had commenced.

3. The original mortgager then filed two applications to scale down the decrees. The first respondent acted as his agent in the court. He did not claim any relief personally. These applications were rejected. The appeal was not pursued after the original mortgagor died. The decreeholder then assigned the decree to the present appellant. Some payments were made by the original mortgagor also before the assigment of the decree.

4. On January 11, 1957, two applications were filed for scaling down of the debts under Section 19 of the Madras Agriculturists Relief Act. These decrees were then scaled down by an order of the court on March 5, 1959. Appeals to the District Court and the High Court failed and credit was also given while scaling down the debts for repayment ment to the mortgagee.

5. In these appeals many new grounds are urged which were not raised in the High Court or the two courts below. We have, however, restricted the appeals to the consideration of the mine points, namely, whether Section 19 of the Madras Agriculturists Relief Act governs this case or not and whether the repayments which were made to the mortgagee could be taken into account for reducing the decretal amount. A last point which does not concern the first respondent was allowed to be raised, namely, whether the persons who had not in their turn applied to claim the benefit of Section 19 could be given the benefit on the application of the first respondent.

6. Act 35 of 1949 applied the Madras Agriculturists Relief Act to Pudukottai State. It repealed also the corresponding law. For both these operations the date was January 1, 1950, although Section 6 kept alive the previous operation of the law and allowed the continuance of any remedy which was being pursued to be continued under the old repealed Act. In other respects the new law began to operate in Pudukottai State. Section 19 of the Madras Agriculturists Relief Act provides as follows:

'19(1) Where before the commencement 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 an agricultural 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, apply the provisions of this Act to such decree and shall, notwithstanding anything contained in the CPC, 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 commencement of this Act, in respect of any such decree shall first be applied in payment of allcosts as originally decreed to the creditor.

(2) The provisions of Sub-section (f) shall also apply to cases where, after the commencement of this Act, a Court has passed a decree for the repayment of a debt payable at such commencement.'

7. Sub-section 2 which was added in 1948 does not concern us because it applies to cases where after the commencement of the Act, a court hid passed the decree for repayment of debt payable at such ccmmencement. In this case the commencement in Pudukottai State was on January 1, 1950. The final decree was passed in 1949 and was before the commencement of the Act. Sub-section 1, however, is clearly applicable. It says that if before the commencement of the Act a court has passed the decree for repayment of the debt, it shall on the application of any judgment-debtor who is an agriculturist scale it down. Now this decree was passed in 1949, that is to say before the commencement of the Madras Agriculturists Relief Act in Pudukettai State. The argument that the commencement means the commencement of the Madras Act is of no avail becouse, (a) it is the right construction of the section, (b) even if it meant the commencement of the Madras Agriculturists Relief Act Sub-section 2 would govern the case. However, we are of opinion that sub-section I applies because commencement means commencement of the Act in Pudukottai State. Since there is a concurrent finding that the answering respondents are agriculturists the benefit of the Act must go to them and the debts were therefore, properly scaled down.

8. This brings us to the second contention whether the re-payments made by the first defendant and others could be taken into account in reducing the decretal amount. In our judgment they must clearly be taken into account because unless they were so taken into account the mortgagee would recover the amount twice over. This argument has no substance.

9. The last contention, however, is entitled to succeed. The answering respondents stated before us that they were not interested in supporting the case of the other transferees from the mortgagor who had not applied for themselves under Section 19 of the Madras Agriculturists Relief Act. We think that the benefit of Section 19 is dependent upon the making of an application under that section and proof that the applicant is an agriculturist. If the other debtors had not made an application at all they cannot get the benefit of Section 19. That is clear enough, Therefore the benefit of Section 19 and the scaling down of the debt will go to the parties who had applied for scaling down and not to any of the other judgment-debtors.

With this modification which does not affect the parties before us, the appeals must fail and they will be dismissed with cost.


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