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Velu Pandar and ors. Vs. Prakasam Alias Padmini - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1978)1MLJ141
AppellantVelu Pandar and ors.
RespondentPrakasam Alias Padmini
Cases ReferredNarayanan v. Annamalai
Excerpt:
- .....appeal, apart from raising the question of jurisdiction of the court below to amend the appellate decree passed by this court under section 19, the appellant has also put forward two fresh grounds of attack. the ground relating to jurisdiction of the lower court to amend the appellate decree passed by this court is not tenable in view of the decision in ramanathan chettiar v. ramanathan chettiar : (1960)1mlj1 , wherein, as pointed out by the court below, the question whether the court of the first instance can amend a decree passed by the appellate court was specifically considered and decided. in that case it was pointed out that sections 19 and 20 of the act have to be read together, section 20 being complementary to section 19, that the explanation to section 20 would apply to.....
Judgment:
ORDER

G. Ramanujam, J.

1. This appeal has been filed by the defendants in O.S. No. 250 of 1973 and the respondents in I.A. No. 92 of 1975 on the file of the Subordinate Judge, Tiruchirapalli. The respondent herein filed a suit for declaration that the sale deed dated 5th May, 1948 said to have been executed by her father in favour of one Pappammal is null and void and in the alternative for reconveyance of the property on payment of the sale price. She also claimed a decree for redemption on the basis that the said sale deed in favour of Pappammal was a mortgage by conditional sale. The Trial Court dismissed the suit with costs holding that the sale deed is true and valid, and that it is not a mortgage by conditional sale. On appeal in A.S. No. 428 of 1968, a Division Bench of this Court held that the said sale deed in favour of Pappammal was a mortgage by conditional sale and therefore passed a preliminary decree for redemption and permitted the plaintiff to depo it into Court a sum of Rs. 8,500 towards principal and Rs. 7,963 towards interest accrued at the rate of 6% per annum from the date of mortgage till date of suit, as a condition for redemption.

2. Thereafter the plaintiff filed I.A. No. 92 of 1975 before the lower Court for amending the decree under Section 19 of the Tamil Nadu Act IV of 1938 here in after referred to as the 1938 Act claiming benefits under that Act. The said application for amendment of the decree was opposed by the appellants mainly on the ground that the application for amendment of the decree should have been filed in this Court, which passed the appellate decree and not before the lower Court. The Court below rejected the said objection as to jurisdiction relying on the decision of the Full Bench of this Court in Ramanathan Chettiar v. Ramanathan Chettiar : (1960)1MLJ1 , wherein it has been categorically ruled that the Court to amend a decree under Section 19 would be the execution Court under Section 37 of the Code of Civil Procedure and therefore an application to scale down a decree debt by amending the decree could be properly made to the Court of the first instance although the decree of that Court had been superseded by the decree of the appellate Court, and that the principle that the original decree in a case where an appeal has been filed is superseded and that therefore the appellate decree is the only decree between the parties for purpose of Section 19 would have no application to a case where the appellate decree was itself capable of being amended under Section 19. The lower Court amended the decree by scaling down the mortgage money due by the respondent with reference to the provisions of Section 9(A) of the 1938 Act as amended, to Rs. 947-68 as against the amount referred to in the decree of this Court is A.S. No. 428 of 1968. The order of the lower Court scaling down the mortgage debt and amending the decree accordingly has been challenged by the appellant.

3. In this appeal, apart from raising the question of jurisdiction of the Court below to amend the appellate decree passed by this Court under Section 19, the appellant has also put forward two fresh grounds of attack. The ground relating to jurisdiction of the lower Court to amend the appellate decree passed by this Court is not tenable in view of the decision in Ramanathan Chettiar v. Ramanathan Chettiar : (1960)1MLJ1 , wherein, as pointed out by the Court below, the question whether the Court of the first instance can amend a decree passed by the appellate Court was specifically considered and decided. In that case it was pointed out that Sections 19 and 20 of the Act have to be read together, Section 20 being complementary to Section 19, that the Explanation to Section 20 would apply to Section 19 as well as to the meaning to be given to the expression 'Court which passed the decree', that the effect of the Explanation is to give a statutory definition of the expression 'the Court which passed the decree' that an application to scale down a decree debt and to amend the decree could, therefore, be properly made to the Court of the first instance although the decree of that Court has been superseded and replaced by a decree of the appellate Court, that an application under Section 19(1) had therefore, to be made Only to the Court of the first instance which passed the decree even though the appellate Court had either affirmed, modified or reversed the decree of that Court. Therefore, this question is no longer res Integra.

4. The two fresh grounds of attack raised for the first time in this appeal by the appellants are: (1) That there is in fact no decree for payment of a debt to the appellant which could be scaled down under Section 19, that the decree of this Court in A.S. No. 428 of 1968 merely enabled the respondent to pay a sum of Rs. 8,500 with interest for redemption of the usufructuary mortgage, and that there being no decree directing the respondent to pay the mortgage money, Section 19 cannot be invoked for amendment of the same by way of scaling down. The second ground is that the respondent not having sought the relief of scaling down under Section 19 before the appellate Court passed the decree, the appellants will be estopped from claiming that benefit after the appellate decree had been passed.

5. The learned Counsel for the appellant submits that Section 19 can be invoked in respect of a decree debt, that is, a decree for payment of money, and not in respect of a decree for redemption which merely enables the mortgagor to redeem the mortgage on payment of the mortgage money. The above submission of the learned Counsel is based on the assumption that the relief under Section 19 can be claimed by a mortgagor only when the mortgagee files a suit for realising the mortgage money and not when the mortgagor files a suit for redemption and obtain a decree for redemption. On a due consideration of the matter I am not in a position to agree with the said submission of the learned Counsel. Having regard to the object sought to be achieved by the Act, that, is to give relief to indebted agriculturists, the construction of a provision in that Act can only be in the furtherance of that object. If the construction suggested by the learned Counsel that Section 19 can apply only to decrees obtained by the mortgagees and not to a decree obtained by the mortgagor for redemption it will virtually deprive the indebted agriculturist from getting the benefits under that Act. Therefore such a consideration has to be avoided if possible. Though a decree for redemption obtained by a mortgagor may not in form amount to a decree for money in favour of a mortgagee, the effect of that decree is that unless the mortgagor pays the amount mentioned in the decree, he cannot redeem the mortgaged properties from the mortgagee. Though there is no direction to the mortgagor as such to pay the mortgage money, in effect, it amounts to a direction to pay the mortgage money as a condition for redemption. If the mortgagor intends redeeming the properties, he cannot do so without paying the amount referred to in the decree for redemption. I am, therefore, of the view that a decree for redemption can also be construed for purpose of Section 19 as a decree for payment of money. I am not inclined to agree with the learned Counsel for the appellant that the decree merely gives liberty to the mortgagor to pay the money as a condition precedent for redemption and that it is not a direction to the mortgagor to pay the money as it is always open to him not to pay the mortgagee money if he is not keen on. redemption.

6. Even otherwise, in this case, there cannot be any doubt that the respondent as a debtor may apply to the Court for a. declaration of the amount of debt due by him to the appellant under Section 19(A) even if the redemption decree obtained by him is not treated as a decree for money and it cannot also be disputed that a mortgage debt will also come within the operation of Section 19(A). Therefore, even if the redemption decree obtained by the respondent is not treated as a decree for money, the respondent can approach the Court for determination of the mortgage money due by him to the mortgagee under Section 19(A) read with Section 9(A) and after getting a declaration of the actual amount due by him he can approach the Court for amendment of his redemption decree based on such declaration, under the provisions of the Code of Civil Procedure. Thus, in any event, the Court below has got jurisdiction to amend the decree directly under Section 19 treating the redemption decree as a decree for money or indirectly by declaring the amount of the mortgage money due by the respondent under Section 19(A) and then resorting to the amendment of the decree under the Code of Civil Procedure. In this view the contention based on the nature of the redemption decree has to fail.

7. It is then contended by the learned Counsel for the appellant that the respondent could have moved this Court for relief under Section 19(a) in the appeal A.S. No. 428 of 1968 and he not having availed of that opportunity is estopped from claiming the benefit of the provisions of the Act. According to the learned Counsel even at the time when this Court passed the appellate decree the benefit under Section 9(A) was available to the appellant and he having not chosen to claim the relief before this Court, it is not no longer open to him to claim the same. In this connection the learned Counsel refers to the decision of the Full Bench in Ramanathan Chettiar v. Ramanathan Chettiar : (1960)1MLJ1 and points out that the Full Bench overruled a similar contention based on estoppel and res judicata only because of Section 16(2) of the amending Act XXIII of 1948, and that there being no similar provision in the amending Act VIII of 1973 the objection based on estoppel and res judicata has to be accepted. I do not see how either the principle of estoppel or res judicata can be invoked in this case. In the Full Bench case decree had been passed on 27th February, 1946 and an appeal was pending before the High Court on the date of coming into force of the Tamil Nadu amending Act XXIII of 1948, which amended substantially Madras Act IV of 1938. The appeal was dismissed by the High Court on 14th of September, 1951 long after the amending Act came into operation. Subsequently the judgment-debtor filed an application for amendment of the decree under Section 19 in the Court of the first instance and for scaling down the decree debt on the basis of the benefits conferred by the amending Act. That application was opposed on the ground that the omission on the part of the debtor to apply for relief under the amending Act at the appellate stage before the appellate Court passed the decree would preclude him from applying at a later stage on the principle of res judicata. This contention was rejected by the Full Bench holding that if a provision of the statute enables the debtor to apply for relief in certain cases either before or after the decree, the rule of res judicata which was essentially a rule of procedure could not abrogate a right expressly given by the statute and that having regard to the generality of Section 19(2) which expressly refers to cases where decrees have already been passed it would entitle a debtor to apply unless there is any limitation to such a right imposed by the provisions of the amending Act. The Full Bench purported to apply the decision of the Supreme Court in Narayanan v. Annamalai : AIR1959SC275 , wherein the Supreme Court has held in the circumstances similar to the present case that the debtor was entitled to apply for scaling down of the decree under Section 19 as amended by Madras Act VIII of 1973. Section 19 reads as follows:

19(1) Where before the publication of the Tamil Nadu Agriculturists Relief (Amendment) Act, 1972 in the Tamil Nadu Government Gazette a Court has passed a decree for repayment of a debt, it shall on the application of any judgment-debtor who is an agriculturist or in respect of a Hindu joint family debt, on the application of any member of the family whether or not he is the judgment-debtor or on the application of the decree-holder, apply the provisions of this Act to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be: Provided that all payments made or amounts recovered, whether before or after the publication, in respect of any such decree shall first be, applied in payment of all costs as are originally decreed to the creditor.

(2) The provisions of Sub-section (1) shall also apply to cases where, after the commencement of this Act, a Court has passed a decree for repayment of a debt payable as at such publication.

Sub-section (1) of that section which applies to decrees passed before the publication of Act VIII of 1973 shall also apply to decrees passed in respect of debts payable at such publication as per Sub-section (2). Sub-section (1) enables a debtor to apply for amendment of the decree passed before the publication of the Act by taking note of the provisions of the principal Act as amended. In this case the mortgage debt was admittedly payable on 24th February, 1973, the date of publication of the Act and the date of the appellate decree is 20th March, 1974 and the application for amendment of the decree under Section 19(2) was filed on 24th December, 1974. In view of Section 19(2) though the appellate decree in this case was passed subsequent to the date of the publication of the amending Act, the same can be amended as the said Sub-section (2) does not talk of any limitation or restriction on the right of the judgment-debtor to get relief by resorting to the said section. I do not therefore, see how the rule of constructive res judicata or estoppel can come into play in this case. As pointed out by the Supreme Court in Narayanan v. Annamalai : AIR1959SC275 , when the section in express terms entitles a debtor to claim a relief under the provisions of the Act when the Court has passed a decree after the publication of the Act for repayment of debt at such commencement that right cannot be taken away invoking the rule of constructive estoppel. To hold that a debtor can ask for relief only when the appeal was pending would be to deny him the relief under Section 19(2) which relief he can claim only after a decree for repayment of a debt has been passed. In this view, therefore, the respondent was not precluded from claiming the relief under Section 19(2) even though he had not claimed the relief in this Court at the appellate stage.

8. Further, there is also one circumstance why constructive res judicata pleaded by the appellant cannot apply to this case. As already pointed out, the suit was one for a declaration that the sale deed dated 5th May, 1948, executed by the respondent's father was null and void and in the alternative for a declaration that the said sale deed was a mortgage by conditional sale and for redemption of the said mortgage. The main contest between the parties before the trial Court was whether the document dated 5th May, 1948 purporting to be a sale deed is a mortgage by conditional sale so that the respondent could redeem the same. The trial Court dismissed the suit holding that the document dated 5th May, 1948 is in reality a sale. It is only the appellate Court which held that the document dated 5th May, 1948 is a mortgage by conditional sale and enabled the respondent to redeem the mortgage. It is only after the respondent's right to redeem the mortgage is recognised she can apply for the scaling down of the mortgage debt. Thus, the respondent's right to apply for relief under the provisions of Tamil Nadu Act IV of 1938 as amended has arisen only after the appellate Court has upheld her claim for redemption by holding that the document dated 5th May, 1948 is a mortgage by conditional sale. Therefore there was no question of invoking Section 19 of the Act before this Court passed the appellate decree, as the respondent can claim a relief under the Act only after he gets a declaration of his right to redeem the mortgage which he got only under the appellate decree. Thus, as there was no possibility for the respondent to seek the relief before the passing of the appellate decree, there is no question of estoppel or constructive res judicata as urged by the appellant.

9. The result is, the appeal fails and is dismissed with costs. Counsel's fee Rs. 100.


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