1. The respondent obtained a decree against the appellants on 17th August, 1925. He brought some property to sale in execution of that decree and the appellants filed a petition to set aside the sale on the ground of material irregularity. That petition was dismissed for default. The appellants then put in an application to set aside the ex parte order, which was allowed. Before the application to set aside the sale was again disposed of, the parties entered into an agreement whereby the appellants were to pay Rs. 3,000 within three months. In the event of their doing so, the sale was to be set aside and full satisfaction recorded; if they failed to do so, the sale was to be confirmed and part satisfaction entered up. Before the three months had elapsed, the Madras Agriculturists Relief Act had come into force and the appellants applied to the Subordinate Judge of Berhampore to scale down the decree. That was done and the sale set aside under Section 23 of the Madras Agriculturists' Relief Act. By that time, more than 12 years had elapsed from the date of the original decree. The respondent therefore asked that the old execution petition which had been pending at the time when the application to scale down the decree had been made, should be revived. The learned Subordinate Judge held that it could be revived and that the present application to proceed against the land was not therefore barred under Section 48, Civil Procedure Code. He therefore ordered execution to proceed.
2. Two points have been raised by Mr. Dikshitulu in appeal. One is that the reasoning of the learned Subordinate Judge was wrong and secondly, that the application should have been filed by the decree-holder in the Court of the District Munsiff of Chicacole within whose jurisdiction the land now lies and not in the Court of the Subordinate Judge which is situated in Orissa. On the first point.
3. I have no doubt that the learned Subordinate Judge was generally right, for the execution proceedings that were then pending were only closed because of the tendency of the application under the Madras Agriculturists' Relief Act which would take some time for disposal.
4. Some further consideration, however, is necessary as to the effect of the application to scale down the debt and the order passed thereon. Was the amended decree a new decree or was it the old decree amended? I think the latter must be the case. It is conceded that a decree as amended under the Madras Agriculturists' Relief Act bears the same date as the old decree, which would not be the case if the amended decree had to be regarded as an entirely new decree. It is based, as Mr. Dikshitulu himself says, on the old judgment and therefore when the revised decree is executed it is really the old decree amended and not an entirely new decree which, under Section 48, Civil Procedure Code, would give the decree-holder a fresh period of 12 years from the date of the amendment. If it is the old decree that is still being executed, then for the reason given by the Subordinate Judge, the old execution petition must be deemed to be pending. If the present proceedings are continuous with the old execution petition, then the Subordinate Judge of Berhampore is merely continuing a pending application, which is permissible under Section 20 of the Order in Council constituting the Province of Orissa; so that the Subordinate Judge of Berhampore did have jurisdiction to pass the order he did.
5. It is probable that the application to scale down the decree did not lie in the Court of the Subordinate Judge of Berhampore; but that is a point which was raised neither in the lower Court nor here.
6. The appeal is dismissed with costs.