1. The appellant filed a suit on a mortgage for Rs. 3,000 bearing interest at 12-3/8 per cent, per annum with a default rate of 12-3/8 per cent, com pound with annual rests. In the plaint the appellant gave up Rs. 550 and claimed Rs. 9,000 with subsequent interest. The defendants raised pleas under Madras Act IV of 1938 which were negatived. The Court accepted the evidence of certain payments made and also reduced the rate of interest to nine per cent simple, treating the transaction as usurious and gave a decree on that basis for Rs. 3,000 with interest at nine per cent from the date of the bond, less the amount of the payments. In calculating the amount of the payments an error was made, the total being taken as Rs. 1,800 instead of Rs. 3,160. The preliminary decree is dated 20th February, 1942 and one year was allowed for redemption. There was no appeal and a final decree was passed. In the course of the execution the defendants discovered the error in calculating the amount of payments and they filed an amendment petition which was allowed, the decree being amended so as to give credit for the full amount of payments, Rs. 3,160. It is against this amended decree that the present appeal is preferred.
2. In appeal Mr. Narasaraju has conceded that the figures of payments adopted in the original decree were wrong and that the error which was corrected in the amendment was a purely arithmetical error. He has, however, contended that the amendment should not have been made because there was another error which neutralises the effect of the arithmetical error and to the extent of the amendment he has contended that the original decision of the lower Court was wrong. His contention is that there was no basis for the lower Court's decision that the rate of interest was usurious and that anyhow the reduction in the rate of interest should not have been so drastic as it was. Against this contention the respondents urge that the appeal is barred by limitation, having been preferred more than two years after the original decree. They also contend that there is another error in the lower Court's original decree which neutralises the effect of the error pointed out by the appellant as neutralising, of the effect of the arithmetical error which was corrected in the amendment.
3. The question of limitation is not really of great importance in this case for if we were of opinion that time had to be calculated from the date of the original decree,. we could in a proper case excuse delay under Section 5 of the Limitation Act. We do, however, wish to express our opinion that in a case of this kind where the appellant does not contest the correctness of the original decree except in so far as he attacks the reduction of the decree by the amendment, time should properly run from the date of the amended decree and not the date of the original decree. In Merla Janikamma v. Sri Inuganti Venkatarqjagopala Chinnarao Guru (1944) 2 M.L.J. 384, to which one of us was a party, it was held that where the appellant was not aggrieved by the original decree but was aggrieved by the amendment, the calculation of limitation for the appeal, should be from the date of the amended decree and not from the date of the original decree. That is the view suggested in the judgment of Subramania Aiyar, J., which was under appeal in the Full Bench decision in Parameshraya v. Seshagiri Appa I.L.R.(1899)Mad. 364 and it seems to us to be the correct view. If the amendment is not the reason for the grievance of the appellant, there is clearly no reason for allowing the appellant to calculate limitation from the date of the amendment rather than from the date of the original decree; but if the appellant was not aggrieved by the original decree, but is aggrieved by the decree as amended, logically and equitably time for the appeal should run from the date of the decree as amended. The decision in Viswanathan Chetti v. Ramanathan Chetti I.L.R.(1901)Mad. 646, which is frequently quoted as authority for the view that in all cases an application under Section 5 of the Limitation Act is necessary, where the appellant is aggrieved by the amended decree and files his appeal in consequence when it would be barred if limitation starts from the date of the original decree, seems to us not to be an authority for the proposition. The learned Judges in that case were dealing with an application to revise an order amending a decree and in rejecting the application, they merely observe that it is open to the petitioner relying on Section 5 of the Limitation Act to appeal against the decree as amended, notwithstanding the expiration of one month from the date when the decree was passed. That is really nothing more than an observation which does not consider any contention that limitation for an appeal as against the amended decree must be reckoned from the date of the amendment in cases in which the appellant had no grievance against the decree before it was amended. We are of the opinion that the present appeal, which is preferred only against the decree as amended, complaining of the reduction in that decree by reason of the amendment, is within time.
4. Turning to the merits of the appeal, we doubt whether it is desirable to attempt to work out the result of the various neutralising errors which are alleged to have been committed in the original decree. Clearly there was an arithmetical error in calculating the amount of payments. The question whether there was an error in the application of the Usurious Loans Act is to a large extent a matter of opinion. The learned Judge might have stated at more length his reason for reducing the claim as drastically as he has done; but it is not a reduction which is obviously illegal. On the other hand there does seem to have been an error in refusing relief under Madras Act IV of 1938 to the sons of the first defendant, because it appears from the judgment that the first defendant, the father, was divided from his own brother so that on the decision, Section 6 of Madras Act IV of 1938 would not operate to make the disqualification of the father from claiming relief exclude the sons from a similar relief. No doubt on a correct working out of the relief under Madras Act IV of 1938 the father would have to be treated as a non-agriculturist and the sons as agriculturists; but the father's share would only be one-fourth of the property. In these circumstances we do not feel disposed to go into the precise effect of these conflicting errors in order to ascertain whether on the balance there is any error to the detriment of the plaintiff which would neutralist the correction of the admitted arithmetical error of the learned Judge in calculating the payments.' In this view we dismiss the appeal with costs.