K HUTCHI GOWER Vs. RICOBDOS FATHAIHMULL AND CO

JUDGEMENT

(1.) This appeal by certificate raises the question whether a decree obtained in a suit to enforce a debt incurred after the Madras Agriculturists Relief Act, 1938 (Act 4 of 1938), hereinafter called the Parent Act came into force could be scaled down under S.13 of the Parent Act.

(2.) The facts are as follows:On February 15, 1945, the appellant and 4 others executed a mortgage deed in favour of Kaverlal Chordia for a sum of Rs. 2,00,000/- payable after three years with interest at 9 per cent per annum. On January 24, 1946, the mortgagee assigned the said mortgage in favour of the respondent. Certain payments towards principal and interest were made thereunder. On February 28, 1950. the assignee-mortgagee i.e., the respondent, filed a suit, O. S. No. 55 of 1950, in the Court of the Subordinate Judge, Nilgiris, Ootacamund, for the recovery of Rs. 1,98,487-8-0, made up of Rs. 1,50,000/- for the balance of the principal and Rs. 48,487-8-0 for interest due on the mortgage. The suit ended in a compromise dated December 21, 1950, under which a decree was passed for Rs. 1,50,000/- on account of principal, with interest and further interest at 9 per cent per annum and cost, subject to some concessions being shown in the event of payments being made in certain specified instalments. Thereafter, certain payments were made towards the decree. In due course the respondent filed I. A. No. 382 of 1953 for the passing of a final decree. On June 24, 1955, the appellant filed O. P. No. 24 of 1955 for scaling down the debt. The respondent, inter alia, contended in his objections filed against the said application that as the debt sought to be scaled down was incurred subsequent to March 22, 1938, which is the date of the commencement of the Parent Act, the decree could not be scaled down under S. 19(2) of the Parent Act. The learned Subordinate Judge overruled the objection and held by his order dated August 10, 1956, that the decree was liable to be scaled down in terms of S. 13 of the Parent Act. He accordingly scaled down the decree debt. On appeal, a Division Bench of the Madras High Court held that as the statutory right to have the interest scaled down was not put forward before the consent decree was passed the decree could not be scaled down at the stage of the final decree proceedings. It further held that S. 19(2) of the Parent Act only applied to debts payable at commencement of the said Act and, therefore, the application for scaling down the decree was not maintainable. In the result it set aside the order of the Subordinate Judge and dismissed the petition for scaling down the debt. Hence the present appeal.

(3.) Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, did not press the appellant's claim under S. 19 (2) of the Parent Act but put it under S. 13 of the said Act. He took us through the relevant provisions of the Parent Act, which according to him disclose the legislative policy undermining the sacrosanctity of decrees and pressed on us to hold, on a scrutiny of the provisions of S. 13 of the Parent Act in the light of the said policy, that the decree made in respect of a debt incurred after the Parent Act came into force was liable to be scaled down thereunder.