Ramaprasada Rao, C.J.
1. This appeal is directed against the judgment of N.S. Ramaswami, J. The respondent as judgment-debtor in a mortgage action sought for the scaling down of a mortgage debt which had ripened into a mortgage decree, under Section 15 of Act XXXVIII of 1972 under fee following circumstances. In 1970 a mortgage was admittedly executed by the respondent in favour of the appellant. The appellant filed a suit, O.S. No. 133 of 1972 in which the respondent, inter alia, claimed the status of a debtor within the meaning of Act XXXVIII of 1972, and therefore the incidental and consequential benefits arising thereunder. But before the preliminary decree was passed on 18th April, 1973, the respondent as defendant-debtor gave up that plea and submitted to a decree. The result was that a preliminary mortgage decree was passed on 18th April, 1973. Accepting the correctness of the decision and also his status as an ordinary judgment-debtor in a mortgage action, without any further privileges under Act XXXVIII of 1972, the respondent is said to have paid a sum of Rs. 1,580 on 18th October, 1973 and asked for further time for the payment of the mortgage debt. Ultimately the final decree was passed on 11th March, 1974. Soon thereafter the respondent paid another sum of Rs. 5,000 towards the final decree and again sought for further time to discharge the mortgage debt. Long after that on 4th November, 1974, the application, out of which the present appeal arises, was filed once again seeking relief under Act XXXVIII of 1972, to wit, under Section 15 of the Act, for scaling down the mortgage debt. The learned Subordinate Judge of Kumbakonom, negatived the contention of the appellant, having regard to the fact that the respondent as judgment-debtor had given up such alleged privilege even before the passing of the preliminary decree and that his conduct thereafter showed that he did not want to revise his stand by seeking such a right or privilege under Act XXXVIII of 1972. This decision was taken up in appeal to this Court in A.A.O. No. 289 of 1975, N. S. Ramaswami, J., was of the view, that, having regard to the language of Section 6 of the Act XXXVIII of 1972 the respondent was entitled to seek the scaling down of the mortgage debt, even though such a decree was one which had been passed after the induction of Act XXXVIII of 1972. The question therefore is whether the privilege or concession granted to a judgment-debtor whether in a mortgage action or otherwise, is applicable to decrees which were passed after the introduction or coming into force of Act XXXVIII of 1972. A similar question, but under the present Act, viz., Act IV of 1938, came up for consideration before a Division Bench of this Court for consideration in Kotayya v. Venkata Punnayya : AIR1940Mad910 The learned Judges there had to consider the effect of sections 7 and 8 of Act IV of 1938 and the question whether the non obstante Clause in Section 7 and the words, 'whether the debt or other obligation has ripened into a decree or not', in Section 8 indicated that all debts incurred before the commencement of that Act should be scaled down irrespective of any decree passed in respect of them, whether such a decree were passed before or after the commencement of the Act. The ambiguity in language between sections 7 and 8 of that Act came up for examination by the Division Bench and the learned Judges expressed the view:. In the light of other provisions of the Act and the scheme revealed thereby it is fairly clear that the reference to decree is indeed only to extend the benefit of scaling down to debts which had ripened into decrees before the Act came into force....
It is therefore reasonable to assume that the words 'decree', which occurs in the same context is also used subject to the same qualification. It is significant that the machinery provided in sections 19 and 20 for amendment of decree by scaling them down in accordance with the Act and for stay of execution pending proceedings for such amendment are made applicable only to decrees passed before the commencement of the Act and there are no similar provision in respect of decrees passed after the Act came into force.
2. Act XXXVIII of 1972 was only an Act to provide for relief to certain indebted persons in the State of Tamil Nadu, and Section 6 thereof provides that, notwithstanding any law, custom, contract or decree of Court to the contrary, all debts payable by any debtor on the publication of the Act shall be scaled down in accordance with the provisions of that Chapter. The language employed in Section 6 of Act XXXVIII of 1972 is materially the same as the language employed by the Legislature in Section 7 of Act IV of 1938. Section 7 of Act IV of 1938 provided that, 'notwithstanding any law, custom, contract or decree of Court to the contrary, all debts payable by an agriculturist at the commencement of this Act shall be scaled down in accordance with the provisions of this Chapter'. We are not concerned with the other Clauses in the section. On a comparison of the language used in Section 6 of Act XXXVIII of 1972 and the language in. Section 7 of Act IV of 1938, it is seen that except for the difference in the expression, 'payable by an agriculturist', and 'payable by any debtor', the substance of the relief granted by both the Acts appear to us to be the same. If therefore the main intendment and scope of the relief granted to debtors is the same both in Act IV of 1938 and Act XXXVIII of 1972, then the dictum of the decision of the Division Bench in Kotayya v. Venkata Punnayya : AIR1940Mad910 has to prevail and has to be adopted. The correctness of the decision came up for consideration before another Division Bench in Varadaraja Pillai v. Rukmani Animal : AIR1941Mad891(1) There the Court was asked to refer the decision in Kotayya v. Venkata Punnayya, to a Fuller Bench, but the learned Chief Justice, speaking for the Court, saw no reason to refer the same to a Fuller Bench. The second Division Bench also agreed with the proposition laid down in Kotayya v. Venkata Punnayya, and we also adopt the same construction in interpreting Section 6 of Act XXXVIII of 1972. In this case therefore the relief that could be asked by a debtor could only be with reference to a decree passed before the commencement of the Act XXXVIII of 1972 and not to those decrees passed after the date of the commencement of the Act.
3. The above two decisions were unfortunately not placed before the learned Judge and presumably that was the reason why he was inclined to remit the subject-matter back for fresh disposal, accepting the contention of the respondent that such a scaling down of the debt was possible even in respect of a decree passed after the induction of the Act XXXVIII of 1972.
4. In the instant case there is yet another feature which would not entitle the respondent to the relief asked for. He sought for relief under Act XXXVIII of 1972 at the written statement stage and gave it up at the stage when the preliminary decree was passed. His conduct as such showed that he was not inclined to agitate the matter further as is seen from the fact that even after the final decree he was prepared to pay various sums of money towards the final decree and he was only asking for time for further payment. This would also estop the respondent from seeking the same relief once again under the same Act.
5. For all the reasons stated above, we are not inclined to agree with the conclusion of the learned Judge. The appeal is accordingly allowed. There will, however, be no order as to costs.