1. The first two cases are alternative one to the other, being an appeal and a revision against an order scaling down a decree under Section 19 of Madras Act 4 of 1938. C.M.A. No. 119 of 1939 arises out of the same decree and is preferred against an order declining to implead the purchaser as a party to the final decree. The facts are simple. In 1936 there was a preliminary decree on a mortgage of 1930. On 3rd February 1937 a portion of the hypotheca was sold and the sale proceeds were paid to the mortgagee who released that part of the hypotheca. On 19th March 1937, there was a final decree for sale of the balance of hypotheca. On 9th October 1937 there was a further private sale by the mortgagor comprising the greater portion of his remaining interest and the purchaser paid us. 25,000 out of the sale price to the mortgagee, the balance of the sale price being retained for future payment. In this state of affairs, when the mortgagor retained his interest in only a few items of the hypotheca, he filed an application to scale down the decree under Section 19 of Act 4 which had recently come into force. By way of counterblast to this application, the decree-holder filed an application to implead the purchaser as a party to the final decree and he opposed the scaling down application on the ground that it should not enure to the benefit of the purchaser who was not an agriculturist. The lower Court repelled his contentions and scaled down the decree at the instance of the mortgagor and declined to implead the purchaser pendente lite.
2. The argument before us on behalf of the decree-holder, who is the appellant here, is briefly this : When Act 4 of 1938 came into force, there was already a liability imposed on the purchaser by reason of his purchase to satisfy this decree by the sale of those items which had been transferred to him. Though the mortgagor was still liable for the decree, it is argued that he was entitled to have the decree scaled down only to the extent of his subsisting interest in the hypotheca as it stood when the Act came into force and we are asked to amend this decree so as to provide for the sale of those items transferred to the purchaser for the full amount of the decree as originally passed and for the sale of those items retained by the mortgagor only for the amount of the decree as scaled down. We have held in Ramier v. Srinivasiah Reported in A.I.R. 1941 Mad. 204 that when there is a decree against two persons one of whom is an agriculturist and the other is not, the decree may be scaled down as against the agriculturist judgment-debtor and left intact as against the non agriculturist judgment-debtor, suitable modifications being made in the form of the decree. But what we are now asked to do is to alter this decree so as, in effect, to give one decree against the only judgment-debtor and another decree against a person who was not a party to the suit and against whom no decree has been passed. We are unable to see how Section 19 of Act 4 of 1938 empowers us to proceed in this manner. It is true that we have held in C.R.P. 1734 of 1939 that an assignee from a judgment-debtor may, if he is an agriculturist, claim the benefits of Section 19. But this decision is no warranty for holding that when the sole judgment-debtor on the record is an agriculturist, the scaling down of the decree should be restricted so as not to affect any portion of the property covered by the decree which has come into the hands of a non-agriculturist after the suit. We are of opinion that the decision of the lower Court on the main question is correct and see no point in impleading the purchaser who has no separata rights to agitate in the execution of his decree.
3. The appellant has also raised the question whether Act 4 of 1938 is ultra vires so far as it affects negotiable instruments. This is a matter which only arises in the process of scaling down the decree and in respect of that contention we are governed by the decision of the Full Bench in Nagaratnam v. Seshayya A.I.R. 1939 Mad. 36. The appeals and the revision petition are therefore dismissed with costs (one net in each of the two civil miscellaneous appeals). We give the necessary certificate under Section 205, Government of India Act, that the case involves a substantial question of law as to the interpretation of the Government of India Act.