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A.V.N. Abu Bakkar Maraikayar Vs. S. Ramaswami Ayyar - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtChennai
Decided On
Reported inAIR1946Mad335
AppellantA.V.N. Abu Bakkar Maraikayar
RespondentS. Ramaswami Ayyar
Excerpt:
- - these provisions make it clear that it is only when orders have been passed under clause (a) of sub-section (4) that the right as well as the disability arises. 4. thirdly, it was contended that one of the items hypothecated to the respondent, namely, item 6, had been alienated subsequently to the mortgage to a third party, and the purchaser not having been impleaded, the suit must fail for non-joinder. this plea is clearly unsustainable as the only effect of not impleading the subsequent alienee will be that the resulting decree will not bind him. lastly, the appellant complained that the lower court unjustly refused to grant an adjournment which was applied for and the appellant had consequently no adequate opportunity to defend the suit properly......on very same date. it is, however, seen from the b diary that the suit was adjourned on 14th april 1944 and posted to 23rd june for written statement and trial. it must be borne in mind in this connexion that there had been previous proceedings between the parties already for determination of the amount due under the suit mortgage after scaling down the same under act 4 [iv] of 1938. there was not much room, therefore, for further disputes in the suit and the appellant's learned counsel has not been able to show that his client was prejudiced by the manner of disposal in the court below. there are no merits in the appeal which is accordingly dismissed with costs.
Judgment:

Patanjali Sastri, J.

1. This appeal has been brought by the defendant from a decree passed on foot of a mortgage executed by him in favour of the respondent on 22nd June 1930. In 1940 the appellant applied under the rules framed under the Madras Agriculturists' Belief Act, for a declaration of the amount due by him under the mortgage claiming to be an agriculturist entitled to the benefits of the Act. The debt was accordingly scaled down and the amount payable by the appellant was determined. Subsequently, Madras Act 15 [XV] of 1943 was passed amending the Agriculturists' Relief Act by inserting therein Sections 19A and 25A. By Section 19A the procedure provided by the rules for scaling down debts due by agriculturists on application by the debtor or the creditor, as the case may be, was superseded and similar provisions were introduced with some additions and alterations among which were a provision requiring all persons who would be necessary parties to a suit for the recovery of the debt to be impleaded as parties to applications made under the section and a further provision enabling the creditor, after the passing of an order declaring the amount due as scaled down, to obtain a decree for such sum on payment of the appropriate court-fee, while barring his right to sue for its recovery. The main point argued before us relates to the plea that the suit brought to enforce the mortgage after the amending Act came into force was not maintainable, in view of Sub-section (9) of Section 19A which provides that,

no Court shall entertain a suit by the creditor for the recovery of a debt... (ii) if a Court having jurisdiction has passed an order under Clause (a) of Sub-section (4) in respect of such debt.

2. It is not disputed this countervailing disability must have the same scope as the right newly conferred on the creditor under Sub-section (5) of obtaining a decree, on payment of the necessary court-fee, after the determination of the amount due in respect of the debt as scaled down. It is, however, urged that even though the proceeding for the determination of the sum due in respect of the mortgage debt instituted under the rules had terminated long before the amending Act came into force, it is open to the creditor to avail himself of the new provisions of Sub-section (5) of Section 19A and he is accordingly precluded under Sub-section (9)(ii) from maintaining the suit. We are unable to agree with this contention. These provisions make it clear that it is only when orders have been passed under Clause (a) of Sub-section (4) that the right as well as the disability arises. They do not provide that the creditor shall be entitled to apply for a decree or shall be precluded from instituting a suit if the Court has passed an order either under Clause (a) of Sub-section (4) of Section 19A or under the old rules in respect of the debt. The right of suing to enforce the mortgage in question which the respondent undoubtedly had when the amending Act was passed could not have been extinguished without express words. It is significant that Section 5 of the amending Act, makes only the provisions of Section 3, which inserts the new Section 25A in the principal Act, retrospective and not the provisions of Section 2 which introduces Section 19A. We are, therefore, of opinion that there is nothing in the new provisions to prevent the respondent from suing to enforce his mortgage.

3. It is next urged that the sum of RS. 535-7-2 paid into Court as the compensation payable in respect of the compulsory acquisition of one of the hypothecated items having been paid out to the respondent who had attached it in execution of a money decree obtained by him against the appellant, the amount should be applied only in pro tanto discharge of the mortgage-debt. The respondent who was examined in the suit deposed that he was not aware that the amount in deposit represented the compensation payable in respect of an item included in his mortgage, and that he had it attached as an asset of the judgment-debtor and applied in satisfaction of his money decree. It is not disputed that the appellant has thus had the benefit of his decree debt being discharged by the application of that sum. As the question here arises only between the debtor and the creditor, no rights of third parties in or to the amount being involved, there is no substance in the appellant's complaint that the fund in Court was applied in discharge of the money decree obtained by the respondent and not in pro tanto reduction of the mortgaged-debt. Reference was made in this connexion to Section 78(2), T.P. Act, but that provision has no application here as it only preserves to the mortgagee his right of security in the compensation money.

4. Thirdly, it was contended that one of the items hypothecated to the respondent, namely, item 6, had been alienated subsequently to the mortgage to a third party, and the purchaser not having been impleaded, the suit must fail for non-joinder. This plea is clearly unsustainable as the only effect of not impleading the subsequent alienee will be that the resulting decree will not bind him. Such non-joinder is not fatal to the suit. Lastly, the appellant complained that the lower Court unjustly refused to grant an adjournment which was applied for and the appellant had consequently no adequate opportunity to defend the suit properly. It was said that the written statement was filed on 23rd June 1944, and the Court proceeded to frame the issues, try the suit and pass the decree on very same date. It is, however, seen from the B diary that the suit was adjourned on 14th April 1944 and posted to 23rd June for written statement and trial. It must be borne in mind in this connexion that there had been previous proceedings between the parties already for determination of the amount due under the suit mortgage after scaling down the same under Act 4 [IV] of 1938. There was not much room, therefore, for further disputes in the suit and the appellant's learned Counsel has not been able to show that his client was prejudiced by the manner of disposal in the Court below. There are no merits in the appeal which is accordingly dismissed with costs.


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