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Punithavalli Ammal Vs. K.P. Chidambara Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 22 of 1949
Judge
Reported inAIR1953Mad165; (1952)2MLJ71
ActsDebt Law; Provincial Debts Laws (Temporary Validation) Ordinance, 1945 - Sections 2; Madras Agriculturists' Relief Act, 1938 - Sections 19(2)
AppellantPunithavalli Ammal
RespondentK.P. Chidambara Mudaliar
Appellant AdvocateV. Seshadri and ;K.S. Ramamurthy, Advs.
Respondent AdvocateA. Sundaram Ayyar, Adv.
DispositionAppeal allowed
Excerpt:
- - in other words,the section gives retrospective operation inregard to suits and proceedings before the actin which decrees or orders had not become finaland also had not been fully satisfied......transactions. where, after adjudication the court refused to apply the provisions of the act and passed decree for the unsealed amount this provision cannot have the effect of reopening the decree passed; nor does clause (b) apply to such cases. under clause (b) decrees, declarations or orders made on the basis that the madras agriculturists relief act applied to promissory notes could not be questioned. it does not touch the converse case of a decree being passed on the basis that the madras agriculturists relief act was 'ultra vires' of the legislature so far as promissory notes were concerned. i, therefore agree with the contention of the learned counsel for the appellant and hold that the provincial debts laws temporary validation ordinance.ordinance no. 11 of 1945 will not enable.....
Judgment:

Subba Rao, J.

1. This civil miscellaneous second appeal arises out of an order passed in execution in B. P. No. 38 of 1947 in O. S. No, 8 of 1942 on the file of the court of the Subordinate Judge, Vellore. The appellant obtained a decree in O. S. No. 8 of 1942 on a promissory note executed by the respondent in his favour. The learned subordinate Judge dismissed the suit applying the provisions of the Madras Act 4 of 1938. In appeal, the District Judge of North Arcot confirmed the decree of the first court. The plaintiff preferred the second appeal to the High Court, S. A. No. 116 of 1944. The High Couit held that the Madras Act 4 of 1938 did not affect the claims on promissory notes and decreed the suit on 8th March 1945. The decreeholder filed E. P. No. 38 of 1947 for executing the decree. After the disposal of the second appeal Government issued an ordinance. Ordinance No. 6 of 1945 Provincial Debts Laws (Temporary Validation Ordinance, 1945) whereunder the Act was made expressly applicable to transactions based on promissory notes. Relying upon this Ordin-ance the judgment-debtor opposed the execution petition and asked for scaling down the decree amount under the Act. The Subordinate Judge-arid in appeal the District Judge held that in view of the Ordinance the decree was liable to be scaled down. The plaintiff preferred the above second appeal.

2. The learned counsel for the appellant contended that the Ordinance does not reopen decrees passed before the issue of the said Ordinance whereunder the provisions of the Madras Agriculturists Relief Act were not applied. The Ordinance reads as follows :

'S. 2: Temporary validation of Provincial debt laws in certain respects -- While this Ordinance remains in force (a) the provisions of the Acts set out in the first schedule and of the amendments enacted after the 1st day of April 1937 and before the 12th day of December 1944 to the Acts set out in the second schedule shall, in so far as they relate to. or affect promissory notes, transactions based on promissory notes or proceedings arising out of such transactions, be deemed to toe and always to have been as valid & effectual for ail purposes as if they had been in relation to such matters as aforesaid, enacted by the Central Legislature & (b) no decree, declaration or order of any court for debt settlement tribunal (by whatever name called) made whether before the commencement or during the continuance of this Ordinance shall be called in question or subjected to notification on the ground that such of the said provisions as are relevant are invalid and ineffectual by reason of the incompetence of the Provincial Legislature concerned to make laws relating to aforesaid matters.'

Clause (a) cannot obviously apply to decrees passed in suits for in express terms the operation of that clause is confined only to promissory notes and to transactions based upon promissory notes or proceedings arising out of such transactions. Where, after adjudication the court refused to apply the provisions of the Act and passed decree for the unsealed amount this provision cannot have the effect of reopening the decree passed; nor does Clause (b) apply to such cases. Under Clause (b) decrees, declarations or orders made on the basis that the Madras Agriculturists Relief Act applied to promissory notes could not be questioned. It does not touch the converse case of a decree being passed on the basis that the Madras Agriculturists Relief Act was 'ultra vires' of the Legislature so far as promissory notes were concerned. I, therefore agree with the contention of the learned counsel for the appellant and hold that the Provincial Debts Laws Temporary Validation Ordinance.

Ordinance No. 11 of 1945 will not enable the judgment-debtor to obtain relief under the provisions of the Madras Agriculturists Relief Act.

3. It is then argued by the learned counsel for the respondent that the lower courts had jurisdiction to scale down the decree under Section 19(2) of the Madras Act IV of 1938. Section 19(2) was added to Section 19 by the amending Act 23 of 1948. By reason of that amendment, an application could be filed for amending the decree though passed after the commencement of the Act 4 of 1938. The first objection to this contention is that no application under Section 19(2) of the Madras Agriculturists Belief Act was filed and that the question was raised only in execution. Apart from this technical objection, I am also of opinion that Section19 clause (2) has no application to decrees that had become final before the Madras Act 23 of 1948 came into force. Section 16 of the Madras Act 23 of 1948 limits the scope and its retrospective effect to the category of cases mentioned thereunder. Section 16 of the Act reads :

'The amendments made by this Act shall applyto the following suits and proceedings, namely :(i) all suits and proceedings instituted after thecommencement of this Act; (ii) all suits and proceedings instituted before the commencement ofthis Act, in which no decree or order passed hasnot become final, before such commencement;(iii) all suits and proceedings in which the decreeor order passed has not been executed or satisfiedin full before the commencement of this Act;Provided that no creditor shall be required torefund any sum which has been paid to orrealised by him, before the commencement ofthis Act.'

A Bench of this court of which I was a memberexplained the scope of Section 16 in C.M.A. Nos. 316and 391 of 1947. The learned Judges say'Clauses 2 and 3 of Section 16 of the Madras Act 23of 1948 are independent of each other and Clause 3cannot have any application to proceedings inwhich decrees or orders have become final beforethe commencement of the Act. Clause 3 is confined to suits and proceedings in which decreeor order has not become final. In other words,the section gives retrospective operation inregard to suits and proceedings before the Actin which decrees or orders had not become finaland also had not been fully satisfied.'I am bound by that judgment. In the present case,the decree in O. S. No. 8 of 1942 had become final,If so Section 19(2) which had been added by the Amending Act 23 of 1948 cannot apply as by reason of Section 16 of the Act its retrospective activity is confined only to a decree that has not become final.

4. For the aforesaid reasons, I hold that the respondent is not entitled to have the decree scaled down under the provisions of the Madras Agriculturists Belief Act. In the result the appeal is allowed with costs throughout. Leave refused.


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