1. These two appeals are from the judgment of Basheer Ahmed Sayeed, J., disposing of two connected Civil Miscellaneous Appeals Nos. 355 and 356 of 1952. It is sufficient to mention the following facts for disposal of these two appeals.
2. The first respondent, claiming to be the reversioner to the estate of one Subbanna Pillai, filed a suit O.S. No. 1 of 1944 in the Court of the Subordinate Judge of Thanjavur, for recovery of possession of several items of properties from several alienees who were in possession of particular properties on the ground that the alienations were not binding on him. The appellant before us was an alienee of two sets of properties under two usufructuary mortgages for Rs. 5,000 and Rs. 3,000 respectively. The alienee, inter alia pleaded that the first respondent was not the reversioner. They also contended that the respective alienations in their favour were binding on him.
3. The learned Subordinate Judge ofThanjavur in his judgment dated 6th April, 1945, held that the first respondent was the reversioner and that certain of the alienations were not binding on him but that the other alienations, including the two mortgages in favour of the appellant, were binding on him. The decree in so far as it concerns the present appellant runs as follows:
(i) On payment into Court on or before 6th July, 1945, of the sum of Rs. 5,000 to the credit of the defendants 7 to 15....the defendants 7 to 15 do deliver possession to the plaintiff of the plaint B Schedule items 26 to 30 described hereunder, that in default of punctual payment as aforesaid the suit in respect of the suit items do stand dismissed;
(ii) on payment into Court by the plaintiff on or before 6th July, 1945, the sum of Rs. 3,000 to the credit of defendants 7 to 15....defendants 7 to 15 do deliver possession to the plaintiff of the plaint B Schedule items 17 to 19, and 23 to 25; that in default of punctual payment as aforesaid the suit in respect of the said items do stand dismissed.'
4. Neither the plaintiff nor any of the defendants 7 to 15 appealed against the decree so far as it concerned items abovementioned. Some of the other alienees, however, defendants 1, 2 and 4, filed an appeal to this Court, Appeal No. 540 of 1945 against that portion of the decree which related to the items in their possession, namely items 13 to 15 of Schedule B. Their grounds of appeal included a ground that the plaintiff was not the reversioner.
5. While the appeal was pending the plaintiff deposited into Court a total suni of Rs. 8,000, i.e., the aggregate of the two sums of Rs. 5,000 and Rs. 3,000 which he had been directed to deposit into Court on 27th June, 1945. It appears that on gth September, 1945, delivery was taken of at least some of the properties. It must, however, be mentioned that the respondent did not file any execution petition for delivery of possession of such of the items which, according to him, had not been delivered in pursuance of the decree. Appeal No. 540 of 1945 was disposed of by this Court on the 24th of February, 1949; the decree of the Court below was confirmed.
6. Meanwhile, on the 25th of January, 1949, the Madras Agriculturists Relief (Amendment) Act (XXIII of 1948) came into force. That Act introduced several amendments and, in particular added Section 9-A which specifically related to usufructuary mortgages. One of the other amendments made by this Act of 1948 is the addition of Sub-section (2) to Section 19 of the main Act.
7. The plaintiff sought to obtain the benefit of the amendments made by the Act of 1948 by filing two petitions, one, an Interlocutory Application No. 394 of 1949, in O.S. No. 1 of 1944, and Anr., O.P. No. 87 of 1949. The relief prayed for was substantially the same. In the Interlocutory Application the prayer was that the decree may be scaled down and he may be permitted to withdraw the excess amount deposited by him. In the O.P., the prayer was that the Court m?y be pleased to direct the redemption of the two Othis by scaling down the debt due under them and to declare the correct amount due, and to direct the refund to the petitioner of the excess amount in deposit in O.S. No. 1 of 1944. Both the applications were heard and disposed of together by the learned Subordinate Judge, of Thanjavur. He held that the respondent was not entitled to any relief under Act XXIII of 1948.
8. Pending the two petitions for relief under Act XXIII of 1948 the respondent made another application for the appointment of a Commissioner to find out what properties were delivered to him in execution and whether any other items covered by the Othi deeds were still undelivered to him. The learned Judge did not grant this prayer of the respondent because, according to him, the moment the money was paid and accepted by the mortgagee, the Othis became discharged, whatever other rights the parties may have about other disputes between them; and that the allegation that some properties are yet to be delivered could not be true because from 1945 the respondent did not complain that he had to get any more properties from the other respondents. It was only after Act XXIII of 1948 was passed that he made this allegation.
9. The above two Civil Miscellaneous Appeals were filed in this Court by the respondent, against the order of the learned Subordinate Judge disposing of the two applications as above. Basheer Ahmed Sayeed, J., allowed both the appeals, set aside the order of the learned Subordinate Judge and remanded the matter to the Court below for scaling down the decree.
10. It is impossible to support the decision of the learned Judge on any of the grounds contained in his judgment. The first contention on behalf of the respondent which found favour with the learned Judge was that Section 16, clause (ii) of the Madras Agriculturists Relief (Amendment) Act (XXIII of 1948) applied to this case because the decree which had been passed in O.S. No. 1 of 1944 had not become final before the commencement of that Act. We have already mentioned that Appeal No. 54.0 of 1945 was disposed of on the 24th of February, 194.9, i.e., after the Amending Act came into force. With respect to the learned Judge, he does not appear to have given due consideration to the fact that the decree in O.S. No. 1 of 1944, so far as it was between the plaintiff and defendants 7 to 15, had become final on 6th April, 1945. The appeal to this Court was not in respect of that part of the decree. Three of the defendants filed that appeal but they did not file the appeal against the entire decree. The decisions cited by the learned Judge in support of his view namely Krishnama Chettiar v. Mangammal I.L.R. 26 Mad. 91, and Sivaramachari v. Anjaneya Chetty (1951) 2 M.L.J. 245 : I.L.R. (1952) Mad. 277 have nothing whatever to do with the facts of this case. We cannot accept the proposition that once an appeal has been preferred even against a part of the decree, the whole matter is res Integra.
11. Mr. Ramamurthi Aiyar, the learned Counsel for the respondent, was unable to support the learned Judge's statement that whether the plaintiff was the appellant or whether he cared to appeal or did not care to appeal against any part of the decree against him does not have any serious consequence in so far as the appeal had been preferred by one of the parties, nor the other statement by the learned Judge that even when there was an appeal in respect of a part of a decree the whole decree is the subject-matter of the appeal.
12. Mr. Ramamurthi Aiyar however raised another contention to bring the case within Section 16, clause (ii) of the Madras Agriculturists Relief (Amendment) Act of 1948. He referred us to the provisions of Order 41, Rule 4 of the Code of Civil Procedure and referred us to the decision of the Full Bench of this Court in Dhutta-loor Subbayya v. Paidigantan Subbayya (1905) 17 M.L.J. 119 : I.L.R. 30 Mad. 470. Rule 4 of Order 41, Civil Procedure Code runs thus:
Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs, or to all defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
The obvious flaw in the argument is that in the present case the defendants who filed the appeal in this Court did not appeal from the whole decree; they appealed only against a part of the decree which was against them. Order 41, Rule 4 of the Code cannot, therefore, have any application. We find in the Full Bench case in Dhultaloor Subbayya v. Paidigantan Subbayya (1905) 17 M.L.J. 119 : I.L.R. 30 Mad. 470, that one of the defendants had filed the appeal against the whole decree. Mr. Ramamurthi Aiyar was not able to cite any other authority in support of his contention that Order 41, Rule 4 of the Code would apply even when the appeal is only by some of the defendants and against part of the decree. We, therefore, hold that Section 16, clause (ii) of the Amendment Act of 1048 cannot be availed of by the respondent. Then there remains clause (iii) which runs thus:
all suits and proceedings in which the decree or order passed hasnot been executed or satisfied in full before the commencement of this Act.
13. The learned Judge was prepared to hold that this clause applied to the case on more that one ground. With due deference to the learned Judge the first ground is hardly intelligible. The learned Judge says:
If they (sic) choose to pay they would get the properties, but if they do not pay within the specified time the properties will remain in the possession of the othidars. Therefore, it cannot be said that that decree was an executable decree and the mere payment of these two sums could not also be said to have had the effect of a discharge of the decree in full or satisfaction as contemplated by Section 16 (ii) of Act XXIII of 1948.
This ground, however, was not pressed upon us by Mr. Ramamurthi Aiyar, and need not detain us.
14. The second ground is that there is a controversy as to whether all the properties covered by the two concerned Othis have been delivered over to the respondent. The learned Judge refers to the application made by the respondent for the purpose of appointing a commissioner to investigate into the matter and to ascertain whether all the items had been delivered or not. The learned Judge has criticised the learned Subordinate Judge's refusal to direct such an enquiry. The learned Judge says:
It was the duty of the learned Subordinate Judge to have gone into the question when once an allegation is made on solemn oath that the appellant had not taken possession of the entire properties.
The learned Judge apparently overlooked the fact that the deposit was in June, 1945 and there was delivery of at least some oftthe properties in September, 1945. But the respondent had at no time brought to the notice of the Court by filing an execution petition that all the properties had not been delivered to him. The learned Judge also failed to notice that this controversy was raised by the respondent only for the purpose of bringing the case if possible within clause (iii) of Section 16 of the Madras Agriculturists Relief (Amendment) Act, 1948. In our opinion the learned Judge was not right in observing that the learned Subordinate Judge had not done his duty by appointing a Commissioner and directing an enquiry. In our view this controversy about the failure to deliver some of the properties which itself, we have no doubt, was an afterthought, has nothing whatever to do with the application of clause (iii) of Section 16 of the Amendment Act of 1948. The only decree for payment of money was the decree directing the respondent to pay a total sum of Rs. 8,000 towards the two Othis, if he desired to obtain possession of the properties covered by the two Othis. That was the only obligation cast in terms of money on the respondent. That obligation was completely discharged by the respondent depositing a sum of Rs. 8,000 into Court. The decree to that extent had been satisfied and the only thing that remained of the decree was the direction to the defendant to deliver possession of the concerned properties to the plaintiff. Obviously the decree for possession cannot be scaled down. If certain properties had not been delivered in accordance with the decree, the respondent was perfectly at liberty to take proceedings in execution and obtain delivery of the undelivered properties through Court. As the correct position is this, namely, that the decree for payment of money has been satisfied or, in other words, the debts due under the two Othis have been discharged by payment there was nothing for clause (iii) of Section 16 of the Amendment Act (XXIII of 1948) to operate.
15. It was faintly argued that the fact that this amount of Rs. 8,000 was not actually drawn by the concerned defendants would make a difference. It would not. Once the respondent had made the payment into Court his liability ceased. The decree has been satisfied. Whether the money was or was not drawn out from Court would not affect the respondent.
16. Mr. Ramamurthi Aiyar, learned Counsel for the respondent, finally contended that even though Section 16 of the Act XXIII of 1948 cannot apply, Section 19(2) which was inserted in the main Act by the Amendment Act would applya There is an obvious fallacy in the argument. Section 16 only says that the amendments made by the Act shall apply to certain suits and proceedings, but, actually, Section 16 does not confer by itself any right, to take proceedings to scale down the decree or other debt. So even if we are to hold that any of the three clauses of Section 16 were to be applicable the application for scaling down must be made under one ox other of the substantial provisions of the Act. There can be no application for scaling down under Section 16 of the Amendment Act. Which particular section would be applicable would depend upon the facts of each case. In certain cases it may be Section 19 or 19(2) or any other amended provision that would apply and in certain other cases even the provisions of the main Act would apply. It cannot be contended that if Section 16 of the Amendment Act would not apply to the case, Section 19(2) which was inserted by the Amendment Act would apply.
17. In the result these appeals are allowed and the order of Basheer Ahmed Sayeed, J., is set aside and the order of the learned Subordinate Judge restored with costs throughout, advocate's fee in one appeal.