1. The question which has been referred is whether Somasundaram Chettiar v. Karuppan Chettiar (1940) 51 L.W. 606 was rightly decided by this Court. The judgment was pronounced by Pandrang Row and Krishnaswami Aiyangar. JJ., sitting as a Divisional Bench. After the judgment had been pronounced an application was made on behalf of the fourth respondent by his mother, who was his guardian for an order under Sections 6, 7 and 8 of the Madras Agriculturists' Relief Act scaling down the debt. The Act had not been pleaded at any stage before the appeal was heard and decided. The reason was that when the suit was dismissed by the trial Court, the Act had not come into force, and the claim was allowed only when it came before this Court on appeal. On the footing that it would be contrary to the spirit of the Agriculturists' Relief Act not to give the judgment-debtor the benefit of the provisions of the Act the learned Judges passed this order:
We are therefore of opinion that the application is one which ought to be admitted and which has to be enquired into. In accordance with the usual practice the application will be remitted to the Court below for disposal according to law after due enquiry, and the decree in the appeal will be subject to the final order thereon.
2. In making this reference Burn and King, JJ., have expressed strong dissent with regard to the propriety of this course. They have pointed out that once a judgment has been delivered the consequent decree must be drawn up in accordance with the terms of the judgment and no Subordinate Court has power to pass an order which will affect the decree. We consider that there is great force in the criticisms which the learned Judges have made with regard to the course adopted in Somasundaram Chettiar v. Karuppan Chettiar (1940) 51 L.W. 606. The learned Judges obviously had no power to make any order which affected the judgment which they had delivered unless passed on an application for review and there was no application for review. They added something to their judgment which is prohibited by the Code of Civil Procedure, and we have no hesitation in holding that the course adopted in that case is contrary to law. If the mother of the fourth respondent in Somasundaram Chettiar v. Karuppan Chettiar (1940) 51 L.W. 606 had raised the question before judgment was pronounced and signed, the position might perhaps have been different. It has been the practice of some learned Judges of this Court, where an application for scaling down has been made before judgment has been delivered, to direct that an inquiry into the application should be conducted by the trial Court and the amount awarded in the judgment should be deemed to be subject to the finding on the application. It is not necessary to decide whether this practice is lawful or not, but to avoid any question arising in future, we consider that the proper course will be to reserve the final order until the application for scaling down has been decided. All questions arising in the appeal other than the question of scaling down can be decided and the decree left open until a report has been received from the trial Court, the application for scaling down being remitted to that Court for inquiry and report. If this procedure is followed the final decree of this Court will state exactly what the judgment-debtor has to pay, bearing in mind all that he is entitled to under the Agriculturists' Relief Act. But if the application is not made before the judgment is delivered, it will be too late for a judgment-debtor to raise the question. The judgment in such circumstances will be the final judgment and the decree must be drawn up in accordance therewith.
3. The costs of this reference will be costs in the matters which have occasioned it.
(After perusing the Opinion of the Full Bench the Court made the following Order).
4. In view of the decision of the Full Bench on the reference made by us, these petitions must be dismissed with costs. (One set).