1. This civil revision petition and the appeal filed in the alternative arise out of the dismissal of an application under Section 20 of Act IV of 1938. There is no right of appeal and the question has to be decided with reference to the civil revision petition whether the dismissal of the application was without jurisdiction or involved any irregular refusal to exercise jurisdiction.
2. The decree in question arose out of a mortgage suit. The preliminary decree was passed on 27th August, 1937, that is to say, before Act IV came into force. The final decree was passed on 25th June, 1938, that is to say, after Act IV came into force. The application for stay under Section 20 was not filed until 18th. December, 1939. The learned District Judge held that the petitioner had the opportunity to urge his defence under Act IV at the time of the passing of the final decree, that it was a plea which he might have and ought to have raised at that stage and that he was barred from raising it after the final decree was passed. He therefore dismissed the application.
3. Now the question whether when the preliminary decree was passed before the Act and the final decree was passed after the Act, it is open to the judgment-debtor in the final decree proceedings to raise a defence under the Act which will have the effect of modifying the amount due under the preliminary decree, is not free from difficulty and it is one which we do not propose to decide in this case. It has been established (vide Varadaraja Pillai v. Rukmani Ammal : AIR1941Mad891(1) that when the preliminary decree has been passed after the Act came into force, a defence under the Act cannot, be raised in the final decree proceedings. But it may well be argued that such a defence might be permitted in the final decree proceedings if it was not open to the judgment-debtor before the passing of the preliminary decree. It is, however, one thing to say that such a plea may possibly be open to the judgment-debtor in the final decree proceedings and it is another thing to say that if he does not take such a plea in the final decree proceedings, he automatically loses the statutory remedy which is given to him under Section 19 of the Act. It is well established that Section 19 applies to the scaling down of preliminary decrees in mortgage suits and there are many decisions in which this Court has approved of the scaling down of a mortgage decree after the final decree has been passed, when both the decrees were anterior to the commencement of the Act. There is nothing in the passing of the final decree which should necessarily prevent the modification of the preliminary decree by the special procedure prescribed in the Act. A final decree is not, strictly speaking, a decree for the repayment of the debt and the modification of the preliminary decree does not prevent the final decree from operating on the modified preliminary decree, for the form of the; final decree does not specify the amount for which the property is to be sold; it merely requires a sale to be held and the realizations to be paid into Court to be applied in reduction of the amount due under the preliminary decree and under any further orders that may 'have been passed. Seeing that this Act has given a special procedure whereby judgment-debtors against whom decrees for repayment of debts have been passed before the Act came into force can have the benefit of a defence under the Act which they had no opportunity to urge before the decree was passed, we do not consider that the mere existence of a parallel remedy in the case of final decree proceedings in a mortgage action can, if it does exist, bar judgment-debtors from taking advantage of a special remedy given under the statute. While therefore we express no opinion on the question whether such a plea is open in final decree proceedings, when the preliminary decree is before the Act we are definitely of opinion that the failure to utilise such a procedure would not bar the use of the express procedure laid down in the Act. It follows therefore that the learned District Judge took a wrong view of his powers and failed to exercise the jurisdiction which he had to stay the execution of this decree pending the filing of an application under Section 19. We are informed that though there is no subsisting stay from this Court, the execution of the decree has been prevented by collateral proceedings. We therefore allow this civil revision petition, set aside the lower Court's order and direct the execution of the decree to be stayed under Section 20 of the Act. The petitioner is entitled to the costs in the civil revision petition. The appeal is dismissed, but there will be no order as>to costs therein.