Skip to content


Esakki thevar Vs. M.M. Ahmed Sha and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1980)2MLJ51
AppellantEsakki thevar
RespondentM.M. Ahmed Sha and anr.
Cases ReferredPeriakaruppa Chettiar v. Vaithyanatha. Chettiar
Excerpt:
- .....fact whether it was a suit instituted by the mortgagee for recovery of the mortgage amount or a suit filed by the mortgagor for redemption. even though in the courts below, the correct provision for seeking relief had not been mentioned in substance it being an application for scaling down by amendment of decree, the courts below ought to have granted the relief as prayed for, since the finality in the proceedings had not been achieved and except for passing of the final decree, execution is yet to be completed, and therefore till the decree is fully satisfied, the judgment-debtor can always move the court for scaling down, even though it is a mortgage decree.5. mr. t. r. mani appearing for the respondent would refer to various decisions rendered under the relevant provisions of the.....
Judgment:

T. Sathiadev, J.

1. C.M.S.A. No. 30 of 1977 is filed against the order in C.M.A. No. 11 of 1975 on the file of the District Court, Tirunelveli which was passed in turn as against the order in I.A. No. 725 of 1973 in O.S. No. 128 of 1970 passed by the Sub Court, Tirunelveli. The interlocutory application was filed on 16th June, 1978 by the defendants in the said suit under Chapter 2 of Section 7(2) of Act IV of 1938, to scale down the decree amount in O.S. No. 128 of 1970. In the petition, it was stated by the defendants that the suit was filed for recovery of an othi amount of Rs. 6,000 and the plaintiff is the assignee of the othi deed dated 1st March, 1968. The first defendant had been in possession of the property on a lease-back arrangement for the arrears of rent, O.S. No. 157 of 1970 was filed by plaintiff and it was decreed and ultimately a sum of Rs. 325 had been collected. On 9th February, 1973, the first defendant had paid a sum of Rs. 900. The plaintiff again filed O.S. No. 621 of 1969 for recovery of arrears of rent and a sum of Rs. 710 had been collected by him. Again he filed O.S. 128 of 1970 and collected a sum of Rs. 2,225. O.S. No. 71 o 1971 was also filed by him and he collected a sum of Rs. 10 in that suit. O.S. No. S92 of 1968 was filed by him and a sum of Rs. 958.92 was recovered by him. Hence it was stated that the amounts thus recovered should be adjusted towards the principal, and interest has to be calculated on the outstanding principal only, and accordingly the decree obtained should be scaled down.

2. The plaintiff contended that the petition is not maintainable either in law or on facts. The decree in O.S. No. 128 of 1970 was obtained on 29th March, 1971, to realise the amount of Rs. 6,000 under the othi, dated, 3rd August, 1967. which was assigned in his favour on 1st March, 1968. A preliminary decree was passed ex parte and later on it was set aside and ultimately a final decree was passed in I.A. No. 36 of 1972, and therefore defendants have no right to ask for redemption of the suit property. The various suits referred to by the defendants relate to recovery of lease amounts and they have no relevancy to this proceeding.

3. The trial Court came to the conclusion that for a decree of this nature, the provisions of scaling down cannot be applied. The appellate Court held that the claim of defendants that they are entitled to the benefits conferred under Section 9-A of Act IV of 1938, as amended by Act VIII of 1973 cannot be accepted or acceded to, because Section 16 as amended by Act XXIII of 1943 still continues to be in force and is applicable to the present case, and since the final decree had been passed on 15th February, 1972, it is not open to defendants to contend that the said decree debt is still liable to be scaled down. Furthermore it was held, relying on the decision in Ramachandra Naidu v. Hassina Bi (1968)1 M.L.J. 189 : 80 L.W. 631 that Section 9-A is only intended to apply when the mortgagor seeks to redeem the mortgage, but in the present case, the property is being brought to sale by the mortgagee, and hence, the decree-debt cannot be scaled down and therefore rejected the appeal.

4. Being aggrieved with this decision C.M.S.A. No. 30 of 1977 has been filed by; the first defendant. The counsel for the appellant contends that the approach made by both the Courts below on different grounds, is totally inapplicable in that the defendants are entitled to ask for scaling down under the Tamil Nadu Agriculturists Relief Act IV of 1938 as amended Act VIII of 1973(hereinafter referred to as the Act), even though, they have not filed a suit for redemption, and that once a decree had been passed in the mortgage suit, such a decree can be amended and debt scaled down under Section 19 of the Act. Her contention in short is to the effect that, after the final decree was made on 15th February, 1972, which is earlier to the relevant date under the Act being 1st March, 1972, it is open to the judgment-debtor to file an application for amending the decree under Section 19 of the Act irrespective of the fact whether it was a suit instituted by the mortgagee for recovery of the mortgage amount or a suit filed by the mortgagor for redemption. Even though in the Courts below, the correct provision for seeking relief had not been mentioned in substance it being an application for scaling down by amendment of decree, the Courts below ought to have granted the relief as prayed for, since the finality in the proceedings had not been achieved and except for passing of the final decree, execution is yet to be completed, and therefore till the decree is fully satisfied, the judgment-debtor can always move the Court for scaling down, even though it is a mortgage decree.

5. Mr. T. R. Mani appearing for the respondent would refer to various decisions rendered under the relevant provisions of the Act and took up the position that the decree being a mortgage decree, the only recourse for a judgment-debtor is to ask for relief under Section 9-A of the Act by filing a suit for redemption, since this Court has by a catena of decisions held that Section 9-A of the Act is a Code by itself and the relief of scaling down will be applicable to a judgment-debtor, only when he filed a suit for redemption, and he cannot seek such a relief when the suit is filed by the mortgagee for recovery of the mortgage amount. As far as the contention that Section 19A of the Act will be applicable, he would state that Section 19-A cannot be invoked in this matter because the final decree having been already passed on 15th February, 1972, and the amending Act VIII of 1973 having become applicable with effect from 1st March, 1972, the application under Section 19-A for declaration of the amount due by the debtor, cannot' be secured because the section itself states that it will apply to debts 'other than the decree debts', though Section 3(iii) defines a debt as meaning 'any liability in cash or kind, whether secured or unsecured, due from an agricultur rist whether payable under a decree or orde-of a civil or revenue Court or otherwise, but does not include rent...' In view of the specific exclusion of decree debts under Section 19-A, defendants in these proceedings cannot ask for declaration of the amount of debt due by them under Section 19-A of the Act.

6. Regarding applicability of Section 19 of the Act, for amendment of the decree, he contends that such a relief had not been asked for and what had been asked for is only scaling down of the decree amount, and Section 19 can have no application to the present case which is a mortgage decree for which Section 9-A of the Act alone will have application. When a udgmen-debtor fails to secure the relief under Section 9-A of the Act, he cannot later on, after passing of the final decree, ask for scaling down by invoking Section 19 of the Act.

7. He refers to the following decisions for the proposition that Section 9-A is a Code by itself and the relief of scaling down under this section can be secured by the judgment-debtor only when he filed the suit for redemption and not when the mortgagee filed the suit for recovery of the mortgage debt. He refers to the decision in Srinivasaraghava v. Narasimha : AIR1952Mad292 , wherein the scope of Section 9-A of the Act had come in for consideration and it was held that 'the scheme of the section leaves no doubt in mind that it is intended only to apply when the mortgagor seeks to redeem the mortgage.' The decision reported in Ramachandra Mudaliar v. Dhandayutha Thondaman (1963) 2 M.L.J. 338 : 76L. W. 577, is to the effect that' Section 9-A is not therefore confined to the subject-matter dealt with in Section 9 alone. It deals with the classes of secured debts which, to a large extent, were exempt from the scaling down provisions of the Act till then. It provides practically a complete Code as it were for a statutory discharge either in full or in part of the mortgage debt where possession of the property had been transferred to the mortgagee'. A reference had also been made to the amendment being brought to the Act by introduction of Section 9-A and as to how it could be disassociated from Section 9 and the scope of application under Section 19-A of the Act for scaling down of the debt under the provisions of the Act provided the applicant is able to show that he is an agriculturist. 'For the present purposes, the decision is being relied upon to the effect that Section 9-A is a Code by itself and relief can be secured under Section 9-A of the Act only if the suit is filed by the mortgagor for redemption. Equally the same view was taken in Rajagopala v. Sina Ana Ishak Rowther : (1960)2MLJ495 . Finally he relied upon the Full Bench decision rendered in Muthusami Odayar v. Savarimuthu Odayar : AIR1963Mad249 , wherein it has been held that Section 9-A of the Act provides a manner of scaling down of the debts in cases Where the mortgagee instead of enjoying the property usufructuarily mortgaged to him, leases it back to the mortgagor and that Section 9-A of the Act, can be invoked only at the time of the redemption of the mortgage. Hence, it is thus made out that Section 9 of the Act can be invoked when the mortgagor seeks relief for scaling down of the mortgage debt, and it is a Code by itself when the suit is filed for recovery of the mortgage amount.

8. It has to be noted that Section 9 of the Act was omitted by Amending Act VIII of 1973.

9. In this case, the final decree was passed on 15th February, 1972, and thereafter the mortgagor is seeking relief for scaling down. As for the applicablity of Section 19 as already indicated, even in the decision rendered in Ramachandra Mudaliar v. Dhandayutha Thondaman (1963) 2 M.L.J. 338 : 76 L.W. 577, in has been held that if Section 19-A (iv) (a) is invoked, if only it be found out that he is an agriculturist, then the Court should pass an order declaring the amount due and this does not depend upon the fact whether in regard to the particular debt, the debtor was entitled to have it scaled down or not'. The view taken by the Division Bench is the one which has been taken earlier in Easrop alias Mani Rowther v. Bookutty Ummar : AIR1956Mad259 , wherein it has been held that on a plain reading of the provisions of Section 19-A a mortgage debt is not as such excluded from the operation of Section 19-A there is nothing to show that Section 9-A is an overriding provision and otherwise self-contained having no relation whatever with the procedure laid down under the Act, for enforcing the rights of the agriculturists. Infact a decision of this Court in Periakaruppa Chettiar v. Vaithyanathan Chettiar (1955)2 M.L.J. 30 : 68 L.W. 477, held that it is open to a mortgagor in a mortgage decree to maintain an application under Section 19-A of the Madras Agriculturists Relief Act, for having a declaration that the mortgage debt has become discharged under Section 9-A of the Act and it cannot be said that the mortgage debt is excluded from the operation of Section 19-A of the Act. Prior to the amending Act XV of 1943, under Section 19-A only a decree debt can be scaled down. 'The language of Section 9-A does not provide that the right can be agitated only in a suit for redemption and not otherwise, so long as the mortgage debt is not outside the scope of Section 19-A.' Nor is there anything is Section 19 which can be said to bar an application by a mortgagor who is entitled to the relief of scaling down under Section 9-A of the Act and to obtain a declaration of discharge of the mortgage. No doubt, any further remedy which the mortgagor might claim to have, as and by way of recovery of possession or otherwise, is not in a proceeding under Section 19-A, but are other modes open to him under law'.

10. Therefore as Section 19-A stood then, in a case where a decree had been already passed, but it has not been fully satisfied, an application under Section 19-A can be maintained by a mortgagor, even though it is a suit which has been filed by the mortgagee for recovery of the mortgage amount. The objection taken by Mr. T. R. Mani that Section 19-A of the Act can have application only in respect of a debt which has been incurred before 1st March, 1972 other than a decree debt, deserves to be considered. This portion of Section 19-A of the Act has been amended by Act VIII of 1973, and therefore, the two decisions above referred to, cannot be relied upon and hence it has to be held that Section 19-A of the Act cannot be invoked in this case, because it relates to a decree debt which has been finally determined before 1st March, 1972.

11. Therefore, the counsel for the appellant-first defendant refers to Section 19, and pleads that any judgment-debtor who is an agriculturist, can apply under the Act for amendment of the decree or for entering satisfaction by applying the provisions of the Act in respect of a decree that has been made before the publication of amending Act, 1972. Dealing with the scope of Section 19 of the Act, as it stood prior to Act VIII of 1973, it has been held in Rama Iyengar v. Nachimuthu Gounder (1942) 1 M.L.J. 590 : 55 L.W. 260 : A.I.R. 1942 Mad. 453, that though a property was being brought to sale in execution of a decree, the judgment-debtor can apply under Section 19 for scaling down of the decree debt and for entering full satisfaction of the decree. It was further held therein that by virtue of the provisions of the Act, when an application is made under Section 19 it has the effect of removing the decree as passed, and substituted by the amount that may be determined in the said application. A judgment-debtor was held to be entitled to apply for relief so long as the decree continues to subsist, except in the circumstances contemplated under Section 20 of the Act. Hence, if the decree that had been already secured, had not been fully satisfied, the remedy which is available under Section 19 of the Act to a judgment-debtor, can be invoked by him at any time after the decree had been passed and before full satisfaction is entered into. No doubt, this decision deals with a case of money decree.

12. A Division Bench of this Court in Venkatammal v. Ramaswani Iyer : AIR1941Mad62 , dealing with a case where a mortgage decree had been obtained, held that Section 19 can be invoked by the mortgagor and also by a subsequent purchaser of the property, both of them being agriculturists and they can have the debt scaled down. The decree-holder in that case claimed that the exception provided under Section 10(2) (ii) of the Act will be applicable. That contention was repelled.

13. A Division Bench of this Court in Kailasa Theyar v. Ramaswami Iyengar : (1948)2MLJ28 , had dealt with a case during the pendency of which the Act came into force, and it was a suit filed by the mortgagee, and wherein except for the first defendant, other defendants had asked for scaling down of the debt in accordance with the provisions of the Act, and the first defendant after the decree was made, filed an application under Section 19 of the Act and asked for amendment of the decree in accordance with the Act and, it was held that be will be entitled to the relief of the amendment of the decree under Section 19 of the Act. Hence, even though the decree was secured by a mortgagee in a mortgage suit, still the judgment-debtor can get a relief under Section 19 of the Act for amendment of the decree, by applying the other provisions of the Act, and it will not preclude him from seeking such a relief on the ground that he had not asked for such a relief during the pendency of the suit or that he had not filed a suit for redemption

14. A reference was also made to the decision rendered in Subba Rao v. Jagannatha Rao : [1964]2SCR310 , wherein the Supreme Court dealt with the applicability of Section 16(ii) and 16(iii) as brought about by the Madras Agriculturists Relief (Amendment) Act XXIII of 1948. Dealing with the scope of Section 19, as it then stood and the amendment brought about by Act XXIII of 1948, it was held that--

It has also been held now for a long time by the High Court that Clause (i) enables all cases of money decree in which the decree passed has not been excluded or satisfied in full before the commencement of the Act.

It was a case wherein the question arose whether there could be any distinction between a decree passed after contest and a decree passed on terms. It was held that both kinds of decrees are included in Section 16(i) and Section 16(iii) of the Act. It was finally held--

the prevailing interpretation of the section in the High Court is preferable in view of the generality of the words used in Sections 19(2) and 16(iii) of the Act. In any event, it would be improper to unsettle a view of law which has become inveterate.

Hence, finally it was held--

the question of scaling down of the decree debt can be agitated once again under the provisions of the Act.

In any event, Mr. T. R. Mani, appearing for the respondent, contended that the lower appellate Court had referred to Section 16(ii) of the amended Act XXIII of 1948, and had come to the conclusion that it still continues to be in force in spite of the amendment effected to the Act under Act VIII of 1973. It is needless to state that the view cannot be correct. The reference made above to the decision of the Supreme Court is only to indicate that the relief of scaling down can-not be deprived of even as the section stood prior to the amendment Act VIII of 1973.

15. Therefore, on an analysis of the matter, it leads to the conclusion that Section 9-A is a Code by itself and it will be operative till the decree is passed. At that stage, it will not be open to the mortgagor to ask for a relief, unless he also institutes a suit for redemption and seeks the relief of scaling down. But, if he is to seek the relief under Section 19-A, which is conceived of for the deter* ruination of the amount due by the judgment-debtor on the date of the application.-it can be availed of by the judgment-debtor But, in this case, it cannot be so, because after the amendment effected by Act VIII of 1973, such a determination cannot be asked for in respect of a 'decree debt'.

16. Hence the only other aspect that required to be considered is whether a judgment-debtor in a mortgage suit instituted by a mortgagee, can ask for the amendment of the decree under Section 19(0 of the Act. On this aspect, even on the basis of the unamended Section 19 of the Act, it has been held in Venkatammal v. Ramaswami Iyer : AIR1941Mad62 , and Kailasa Thevar v. Ramaswami Iyengar : (1948)2MLJ28 , both of which dealing with cases, arising in mortgage suits filed by mortgagees, that the judgment-debtor can ask for amendment of such a decree applying the provisions of the Act. In this case, the decree has not been fully satisfied and therefore, there can be no restraint on the judgment-debtor to seek relief under Section 19(i) of the Act. Section 9-A cannot prevent any relief being graned under Section 19 of the Act, because the entitlement conceived of under Section 19 of the Act arises only after the decree is passed. Section 9-A does not deal with decrees but of usufructuary mortgage suit claims.

17. After the decree is pissed, the mortgagor is enabled under the Act to have the decree amended under Section 19 of the Act, which cannot be controlled by anything that is contained in Section 9-A which deals with a different situation altogether. I have already referred to the decision wherein it has been held that Section 9-A of the Act cannot have any overriding effect on Section 19-A of the Act as it then stood. Periakaruppa Chettiar v. Vaithyanatha. Chettiar (1955) 2 M.L.J. 30 : (1955) 68 L.W.477. The same reasoning will be applicable even in respect of Section 19(i) which relief can be claimed only after a decree is passed. At this juncture, Mr. T. R. Mani would contend that even assuming that Section 9-A of the Act cannot control Section 19 of the Act, in carrying out amendment of the decree, the Court has to 'apply the provisions of this Act to such a decree' and the decree will have to be accordingly modified. When the provisions of the Act are to be applied, it can only refer to Section 9-A of the Act and not to the other provisions of the Act. If there is nothing in Section 9-A to comprehend within itself anything that may transpire after the passing of the decree, then the contention of Mr. T. R. Mani can have some force. After the passing of the decree in a mortgage suit, the relief obtained for realisation of the amounts will be attracted by the provisions of the Act other than Section 9-A of the Act and to that extent, relief can be granted under Section 19 of the Act.

18. Hence the appellant-first defendant will be entitled to the relief under Section 19 of the Act and to what extent he will be entitled to the relief will have to be worked out by the Sub-Court, Tirunelveli wherein the application bad been filed. It is contended that the appellant has not mentioned the correct provision of law in the petition. It is so. Yet the prayer is 'to scale down the decree amount, which would mean that the relief is asked for only under Section 19 of the Act. Now, that the matter has to be remanded to the Sub-Court, Tiruaelvli, for determination of the extent to which the appellant-first-defendant will be entitled to the relief, it will be open to the appellant to seek for rectification of the erroneous provision of law mentioned in the petition, by filing the necessary applications. Thereafter, the Sub-Court has to proceed with the matter in accordance with the directions given above. Hence the appeal is allowed. No costs. The matter is remanded to the Sub-Court, Tirunelveli, to decide as to what extent the appellant-first defendant will be entitled to the relief asked for.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //