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Palani Goundan Vs. Peria Goundan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad158; (1940)2MLJ887
AppellantPalani Goundan
RespondentPeria Goundan
Cases ReferredThiruvengadam Pillai v. Doridla Subbiah
Excerpt:
.....agriculturists, at the commencement of the act (see section 17) while section 19, read with the definition of 'agriculturist' seems to require that the debtor seeking relief should be an agriculturist at the time of the application, and the first paragraph of section 19 further requires, with a view to prevent abuse of the provisions of the act, that the debtor should also have been an 'agriculturist' on the 1st october, 1937, as the proposal of affording relief to indebted agriculturists was made known that date. in these circumstances, if the contention of the respondent were to be accepted, it would have the startling result, that though the petitioner as well as his liability comes within the purview of section 7 which provides that the debt 'shall be scaled down in accordance..........the meaning of section 19, it will be observed that the definition of that term in section 2(10), civil procedure code, as meaning 'any person against whom a decree has been passed or an order capable of execution has been made' has not been incorporated in this act. on the other hand, the definition of 'debt' in section 3(iii) includes debts payable under a decree or order of a court. according to the decision in perianna v. sellappa : air1939mad186 , the liability of the. petitioner as the purchaser of the properties subject to the mortgage decree is a 'debt' within the meaning of the act. in these circumstances, if the contention of the respondent were to be accepted, it would have the startling result, that though the petitioner as well as his liability comes within the purview of.....
Judgment:

Patanjali Sastri, J.

1. This is a petition to revise an order of the District Munsif of Namakkal dismissing the petitioner's application under Section 19 of the Madras Agriculturists' Relief Act for scaling down the amount payable under the decree dated 14th August, 1932, in O.S. No. 678 of 1932 on the file of that Court.

2. The respondent obtained the decree on foot of a mortgage to which he claimed to be subrogated and was proceeding with its1 execution when the petitioner, having purchased the equity of redemption in the properties on 17th April, 1936, in execution of a money decree against the mortgagors, intervened with a claim to have the respondent's decree amended under Section 19 of the Act. There is no dispute that the petitioner is an agriculturist but the respondent objected that the petitioner was not a 'judgment-debtor' within the meaning of that section. The Court below upheld the objection and dismissed the application. It appears to have been conceded in the Court below that the defendants in the mortgage suit against whom the decree was passed were not agriculturists at the commencement of the Act as, after the purchase by the petitioner as aforesaid, they had no agricultural lands left in their possession, and it was presumably a matter of indifference to them whether or not the amount of the decree was reduced.

3. Before dealing with the main question as to whether or not the petitioner can be regarded as a judgment-debtor within the meaning of Section 19 of the Act, we will mention, only to dismiss, the suggestion that, in view of the definition of 'debt' in Section 3(iii), unless the debt for the repayment of which the decree was passed was a debt due by an agriculturist even at its inception, Section 19 could have no application. The object of the Act is clearly to provide relief for debtors who are agriculturists, at the commencement of the Act (See Section 17) while Section 19, read with the definition of 'agriculturist' seems to require that the debtor seeking relief should be an agriculturist at the time of the application, and the first paragraph of Section 19 further requires, with a view to prevent abuse of the provisions of the Act, that the debtor should also have been an 'agriculturist' on the 1st October, 1937, as the proposal of affording relief to indebted agriculturists was made known that date. Thus, it is clear that the agriculturist character of the debtor is not relevant for purpose of scaling down debts under the Act except with reference to these three dates, and it is immaterial whether or not the debtor had such character when the debt was originally incurred where it was incurred prior to the 1st October, 1937.

4. Turning now to the main question whether the petitioner can be said to be a 'judgment-debtor' within the meaning of Section 19, it will be observed that the definition of that term in Section 2(10), Civil Procedure Code, as meaning 'any person against whom a decree has been passed or an order capable of execution has been made' has not been incorporated in this Act. On the other hand, the definition of 'debt' in Section 3(iii) includes debts payable under a decree or order of a Court. According to the decision in Perianna v. Sellappa : AIR1939Mad186 , the liability of the. petitioner as the purchaser of the properties subject to the mortgage decree is a 'debt' within the meaning of the Act. In these circumstances, if the contention of the respondent were to be accepted, it would have the startling result, that though the petitioner as well as his liability comes within the purview of Section 7 which provides that the debt 'shall be scaled down in accordance with the provisions of this Chapter', that is, of Chapter II of the Act which contains the substantive provisions as to scaling down of debts, he would be excluded from such relief by reason of the 'procedure' provided in Section 19 for obtaining it being inapplicable to him. Oh the other hand, it stands to reason that the procedure provided in a statute for enforcement of the substantive rights conferred thereby should be construed as far as possible, so as to give effect to and not to nullify those rights. This is by no means in conflict with the principle we have often reiterated in connection with this Act, namely, that its provisions being of an expropriatory character should be strictly construed and its scope ought not to be extended beyond what is clearly and expressly indicated by its terms. In the absence of any definition this Act, there is no obvious reason why the term 'judgment-debtor' should not be understood as including a person whose liability is a 'debt' as defined by the Act, more especially as that definition includes a judgment-debt.

5. As pointed out by learned Counsel for the petitioner, there is authority for the view that even under the Civil Procedure Code, the term 'judgment-debtor' notwithstanding the definition contained therein, includes those who claim through or in, his right. In Panduranga Mudaliar v. Vythilinga Reddi (1907) 17 M.L.J. 417 : I.L.R. 30 Mad. 537, it was held by a Bench of this Court that Section 258 corresponding to Order 21, Rule 2 of the present Code was applicable to persons in the position of the respondent before us. The learned judges observed:

We think however that the word 'judgment-debtor' in Section 258 should be construed as including those who claim through him or in his right. To hold otherwise would lead to obvious hardships which we cannot think were contemplated.

6. This decision was followed by Seshagiri Aiyar, J., in Matharasappa Chettiar v. Muthu Chettiar (1919) 9 L.W. 596 and was referred to with approval by Wadia, J., in Shivbasappa Chinnappa v. Marigowda Huchangowda I.L.R.(1933)Bom. 485.

7. The respondent's learned Counsel placed reliance on the decision of Horwill, J., in Ganapathi Bhatta v. D'Sowza : AIR1940Mad907 , which no doubt supports his contention. The learned Judge held that the word 'judgment-debtor' in Section 19 must be understood in the sense defined in the Civil Procedure Code, and therefore a purchaser of the equity of redemption from a Receiver in the insolvency of a judgment-debtor was not entitled to apply under 'that section. Distinguishing Panduranga Mudaliar v. Vythilinga Reddi (1907) 17 M.L.J. 417 : I.L.R. 30 Mad. 537, the learned Judge observed that:

Even there it was not said that persons claiming through judgment-debtors were also judgment-debtors. It only says that Section 258 applied to those claiming through them and in their right as well as to judgment-debtors.

8. We cannot agree with this view of that decision. The learned Judges there referred to the contention for the appellant before them based upon the definition of 'judgment-debtor' in the Code of Civil Procedure, and they expressly held in the passage quoted above that the word 'judgment-debtor' in Section 258 included those who claimed through or under him. Nor is there any change in this respect in the present Code, as the learned Judge appears to have supposed. The learned Judge also placed reliance upon Thiruvengadam Pillai v. Doridla Subbiah (1912) 13 I.C. 659, as expressly deciding the point. The case itself related to the right of a transferee of a decree to apply under Order 21, Rule 53 to execute the decree when such decree had been attached by a creditor of the decree-holder. In support of their conclusion that the assignee of an attached decree was not in the same position as the decree-holder himself for purposes of execution, the learned Judges observed:

We may also point out that the definition of judgment-debtor, as given in Section 2, Clause 10 of the Code of Civil Procedure does not include the assignee of the judgment-debtor.

9. The observation is thus purely obiter, if it is to be understood as anything more than a statement of a fact. However that may be under the Code of Civil Procedure, we consider that there are as already indicated cogent reasons for not construing the word 'judgment-debtor' in the restricted sense of the definition in Section 2(10) of the Code of Civil Procedure, and we are accordingly of opinion that the petitioner is entitled to apply under Section 19 of the Madras Act IV of 1938 for amendment of the decree by scaling down the amount payable thereunder in accordance with the provisions of the Act.

10. In this view, it is unnecessary to consider the question whether the petitioner could rely on Section 146, Civil Procedure Code, when the defendants in the mortgage suit had ceased to be agriculturists at the commencement of the Act.

11. We set aside the order of the Court below and remand-the case for disposal in the light of our judgment herein. The petitioner will have his costs of this revision petition.


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