1. These two appeals are against the judgment of Mack J. disposing of a Civil Miscellaneous Appeal No. 519 of 1948 preferred against an order passed by the Prin-cipal Subordinate Judge of Visakhapatnam in E. P. 26 of 1948. The transferee decree-holder of the decree in O. S. 14 of 1935 on the file of the Subordinate Judge, Visakhapatnam, is the appellant in L. P. Appeal No. 76 of 1949 and the second judgment-debtor who is the contesting respondent therein is the- appellant in the connected appeal No. 90 of 1949.
2. There is no dispute about the material facts. A preliminary mortgage decree was passed against two brothers for a sum of about Rs. 15,373 on 27-2-1937 and final decree was passed on 29-10-1937. The Second judgment-debtor filed an application (E. A. 618 of 1938) to scale down the decree debt under the provisions of Madras Act 4 of 1938, This application was allowed and the debt so far as he was concerned was scaled down to Rs. 4,000 for principal and interest at 6 per cent from 1-10-1937 till realisation and costs with interest from the same date at the same rate. The order scaling down the decree was passed on 31-1-41. Subsequent to this order the decree was transferred to the appellant in L. P. A. 76 of 1949 and he appears to have filed an application to have the transfer recognised (E. P, 64 of 1942). There was also a prior petition for execution (E. P. 32 of 1942) but our attention was not drawn to any order passed by the Court as against the second judgment debtor in either of these applications.
Eventually the transferee decree holder filed E. P. 26 of 1948 on 26-2-1948 claiming Rs. 4,000 for principal and subsequent interest from 1-10-37 and the full amount of costs and interest thereon from the same date. He prayed for a sale of the hypotheca belonging to the second defendant's share for Rs. 9,031-5-10. The second judgment debtor raised an objection on the ground that under Section 14 of Madras Act 4 of 1938 he would be liable to pay only half the amount of Rs. 4,000 and interest thereon. He also pleaded that he had already paid Rs. 4,071-4-6 which would cover his liability and therefore the execution petition should be dismissed. The learned Subordinate Judge made an order that the second judgment debtor was liable to pay half the costs of the suit and the full interest on Rs. 4,000/- from 1-10-37 till date of payment and he directed execution to proceed after deducting Rs. 4071-4-6 already paid. Against this order the second judgment-debtor preferred C. M. A. 519 of 1948. Mack J. was unable to understand on what basis the learned Subordinate Judge had passed his order. He thought a muddle had resulted from the failure of the scaling down court to amerd the original mortgage decree in accordance with the provisions of Section 14 of the Act. He therefore thought that the only way in which justice could be done was by permitting the second judgment debtor to rectify this error. He apparently considered that it was necessary for the judgment-debtor to flle an amendment application under Section 152, C. P. C. to apply the provisions of Section 14 of the Act. With these directions he allowed the appeal.
3. Mr. Somasundaram appearing for the transferee decree holder in L. P. A. 76 raised a plea of res judicata. He contended that it was too late in the day to rely upon the provisions of Section 14 of the Act. If the judgment debtor wanted to rely upon those provisions he ought to have availed himself of the opportunity in the application filed under Section 19 of the Act for scaling down the decree. Not having done so, he cannot now urge the objection in execution. We see no substance in this contention. In our opinion, it was not necessary for the judgment-debtor to have invoked the provisions of Section 14 of the Act in his application under Section 19 of the Act to scale down the decree. Section 14 is a special provision which applies when there is a debt payable by members of a family some of whom are agriculturists and some are not That section declares that in such cases the creditor could recover only their proportionate shares from the agriculturist and r.on agriculturist members respectively. It was not therefore incumbent on the judgment debtor to have included a prayer for the application of Section 14 of the Act in his scaling down petition under Section 19. We are supported in this view by the decision of a Bench of this Court in - 'Rayalu Iyer Nagaswami Iyer & Co. v. Shanmugham', (A). The Teamed Judges dealing with a similar plea of res judieata observed thus:
"The cause of action for filing an application under Section 8 of the Madras Agriculturists Relief Act and the relief claimed therein are different from that claimable in an application under Section 14 of the Madras Agriculturists Relief Act.....................As the scope of the applications and the reliefs obtainable thereunder are different the order, Ex. D 1, cannot operate as res judicata."
While we agree with these observations we do not think the learned Judges meant to lay down that a substantive application is necessary for the judgment debtor to obtain the benefit of Section 14 of the Act. When the creditor proceeds to recover what is alleged to be due to him, the judgment debtor can rely upon this provision. That is what the judgment debtor has done in this case. We therefore see no reason why he should be driven to file another application for an amendment either under S, 152, C. P, C. or under any other provision of law. He has raised the objection based upon the section in his counter affidavit in the execution petition and his objection must be upheld.
4. In the result the appeal filed by the transferee decree holder must be dismissed and the appeal filed by the second judgment debtor must be allowed. The order of the learned Subordinate Judge on E. P. 26 of 1948 must be set aside and he is directed to take up that application on file and proceed to dispose of it as against the second defendant in the light of this judgment. Mr. Y. Suryanarayana, learned counsel for the second judgment debtor represented to us that he has actually made a payment in excess of his liability when Section 14 of the Act is applied. That is a matter which may be taken into consideration by the learned Subordinate Judge in passing final orders on the execution petition. The appellant will pay the costs of the respondent in L. P. A. 76 of 1949. No order as to costs in L. P. A. 90 of 1949.