Pandrang Row, J.
1. This is an application to revise the order of the District Judge of West Tanjore dated 27th October, 1938, on a petition presented under Section 20 of the Madras Agriculturists' Relief Act IV of 1938 praying for stay of execution of the decree in O.S. No. 3 of 1919. The suit was one known as the Tanjore Palace Estate suit which was last dealt with in this Court so far as the present controversy is concerned. In the case reported in Arunachalam Chettiar v. Pratapasimha Rajah Saheb (1930) 60 M.L.J. 79 at 80, the facts necessary for understanding the present' dispute are stated, at least, most of them. The present application under Section 20 of the new Act was made by the son of the twenty-ninth defendant in the suit. The twenty-ninth defendant belonged to one group of defendants to whom the preliminary decree in the suit passed on 1st July, 1918 (the suit had been originally instituted as O.S. No. 26 of 1912) awarded 3/4th share. In appeal, this share was reduced, but in the interval, the twenty-ninth defendant as well as others belonging to his group had taken away from Court various sums of money under certain conditions imposed in the order made on a stay petition. Instead of however restitution being made as a result of the appellate Court's modification of the first Court's decree, the partition having been made actually in the interval, the first Court allowed the parties to retain the shares originally allotted to them but imposed a charge in respect of certain amounts on those shares in the case of those who had received more than their proper share according to the appellate Court's decree. The present execution petition in connection with which the application for stay was made was for the purpose of enforcing this charge. The twenty-ninth defendant became an insolvent long ago and it is conceded that a dividend also has been declared by the Official Receiver.
2. The application of the petitioner was dismissed by the learned District Judge on several grounds. So far as one of the points is concerned, namely, that the petitioner is not an agriculturist, it is clear that this finding that he is not an agriculturist cannot remain as it stands for the simple reason that the parties had no real opportunity to adduce evidence on this point. It would seem as if the petition was posted for hearing on points of law leaving the question of fact, namely, whether the petitioner is an agriculturist to be decided later on, if necessary. Unfortunately, however, the learned District Judge happens to have lost sight of this fact and recorded a finding, so to say, on this point against the petitioner by saying that no evidence had been produced on this point and it is not conceded on the other side. It is not as if there is a clear and definite finding on the point, but I wish to make it clear that if there is a definite finding against the petitioner, that finding cannot stand for the reason that the parties had no reasonable opportunity to adduce evidence relating thereto, and if on other grounds, the petitioner succeeds, this point will have to be decided afresh by the Court below after giving an opportunity to both parties to adduce evidence.
3. It has been argued that there is no debt in this case which would entitle the petitioner to apply under Section 20 of the Act. No doubt the charge does not make the petitioner personally liable nor indeed his father personally liable for the amount charged. But it must be remembered that the charge was, as it were, a substituted liability in place of the original personal liability of the father to make restitution. The definition of the word 'debt' found in the Act does, in my opinion, include a liability to make restitution. All that the definition says is that if there is a liability in cash or kind due from an agriculturist whether payable under a decree or order of a civil or revenue Court or otherwise, it constitutes a debt. There was here an undoubted liability on the part of the twenty-ninth defendant to pay in cash as restitution whatever amounts he had drawn from Court in excess of what he was ultimately found to be entitled to under the decree of the appellate Court. Moreover, as pointed out by the petitioner's advocate, it has been held in Perianna Goundan v. Sellappa Goundan : AIR1939Mad186 by a Bench that the definition of 'debt' in the Act cannot be restricted to cases where a person is personally liable and that it is wide enough to cover the case of every person who is in any manner liable either because he is personally liable or because he is liable on account of'the possession of property, and takes in his heirs, legal representatives or assigns. On the other side, the decision of a single judge reported in Narayanachari v. Annamalai Chettiar : AIR1940Mad61 has been brought to my notice. That is to the effect that a puisne usufructuary mortgagee who is made a party to a suit by the first mortgagee which is decreed, is not a debtor within the meaning of the new Act. The judgment in that case is a very short one and the reason there given is that an usufructuary mortgagee is not a debtor, because in no sense of the word he is a debtor. That is so because qua mortgagee he could not be regarded as a debtor but only as a creditor. There is also a sentence following to the effect that the decree is not against him for a debt payable by him jut in his favour allowing him aright in equity to redeem the first mortgage and therefore he was under no liability under the decree. In other words, the decree in that case was one which gave him an opportunity to do something but which did not make him liable to pay anything in cash or in kind. That being the case, that decision cannot support the respondent's contention in. this case where there is undoubtedly an attempt made by him to execute a decree, by enforcing the charge allowed by the decree against properties which are in the possession of the judgment-debtor's son. I have little doubt in my mind that this is a case in which so far as Section 20 of the Act is concerned, assuming that the petitioner is an agriculturist, there is a debt in respect of which he is entitled to get relief; but at the last moment, so to say, it has been contended by Mr. Viswanatha Sastri on behalf of the respondent, abandoning for the time being the contention that there is no debt, that Section 20 can be availed of only if there is a decree passed against a person entitled to the benefits of the Act, and that the petitioner is not such a person because there is no decree passed against him even assuming that he is entitled to the benefits of the Act. This contention can be shortly met by the remark that a decree passed against the father in respect of a family liability, that is to say, a liability enforceable against the family property must be deemed in law to be a decree passed against the son also. The subsequent insolvency of the father does not make the decree any the less a decree passed against the son. Whether the effect of the insolvency deprives the son of any of the benefits which he would otherwise be entitled to is not a question that fails to be decided at present. At present the only point for decision is whether the petitioner is entitled to maintain an application under Section 20 and not to determine the exact relief to which he may be entitled. That question has to be, and should be, left to be decided later on if and when an application is made under Section 19 of the Act.
4. Mr. Viswanatha Sastri has also relied on the case reported in Mottai Meera v. Abdul Kadir : AIR1939Mad471 , but that case is really not in point because the decision there was not on the basis that the liability was not a debt at all from a general point of view but that it was not a debt under the Act and that for the special reason that the liability arose by reason of the fact that one of several co-owners was in possession of common property and therefore liable to account. As pointed out by Varadachariar, J., at page 528, the relationship between such co-owners of whom one is in possession of common funds is not that of creditor and debtor. Dealing with the claim to interest in that case, it was observed that interest could be claimed only on the basis of some breach of trust and that by reason of that fact, the liability could not be regarded as a debt under the Act solely by reason of the specific provision in Clause (f) of Section 4 of that Act which excludes from the operation of the Act liabilities arising out of any breach of trust.
5. The learned District judge appears to have relied also on Section 21 of the Act as a ground for dismissing the petition for stay. That section merely says that:
Nothing in this Act shall apply to the debts payable by any person who has been adjudicated an insolvent, if prior to the coming into force of this Act, a dividend has been declared out of his assets.
6. It may be that the debt in the present case is one payable by the father and he is an insolvent in whose insolvency a dividend has been declared long ago, but that does not mean that his son who is in possession of the family property is not entitled to claim the benefits of the Act simply because his father cannot do so by reason of Section 21 of the Act. In the view that I have taken, it follows that the original decree itself which is now being executed must be regarded as a decree to which the petitioner is virtually a party though not by name, and he must be regarded as being a person by whom the debt is payable as well as by his father and the insolvency of the father and the payment of a dividend cannot, in my opinion, disentitle the son from applying under the Act, if otherwise he satisfies the conditions laid down in the Act. The exclusion of an insolvent enacted in Section 21 must be limited only to the insolvent, and the debts payable by him, and even if the same debt is payable by another, say, his son, the son cannot be regarded as being virtually excluded by Section 21. For instance, if a debt is payable by more than one person, the insolvency of one cannot deprive the other person liable for the debt of his right to apply under the Act if he otherwise satisfies the provisions of the Act. This seems to be fairly clear, and therefore any reason based under Section 21 for the purpose of non-suiting, so to say, the petitioner, must be dismissed as one based on a misapprehension of the scope of Section 21. It follows from what I have said that the reasons given by the learned District Judge for dismissing the petition are not sustainable in law and his order must be set aside, but, as I have observed already, as the main question of fact which arises in this case, namely, whether the petitioner is an agriculturist has not been properly decided, the petition will be remanded to the Court below for fresh disposal according to law in the light of the observations contained in this judgment after giving reasonable opportunities to both parties to adduce evidence on the point which is to be enquired into, namely, whether the petitioner is an agriculturist.
7. The costs of this petition will abide the event and should be provided for in the revised order of the lower Court.