SELVARAJAN Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) This appeal by special leave arises from the order of the Single Judge of the Madras High court in CRP No. 2389 of 1979 dated 18/1/1982. The case has a chequered history and the facts stated in the judgment are as under: One Rajagopal Pillai, the husband of the respondent herein, died in 1948 without issues. The respondent herein instituted OS No. 359 of 1948,in District Munsif's court, Thiruthuraipoondi, as heir of her husband for recovery of possession of certain properties trespassed upon by two persons and also for an injunction in relation to certain other items. During the pendency of the suit, one T. A. Madadeva lyer was appointed as the Receiver. On 27/6/1949, the Receiver granted a lease of the properties in favour of one Sattayappa Thever, who agreed to pay 3200 kalams of paddy towards rent. On the same day, guaranteeing the performance of the obligations of Sattayappa to measure the rent as agreed, the father of the petitioner herein, Sadasiva, executed a security bond in favour of the court charging certain properties and binding himself to pay a sum of Rs. 18,000. 00. The lessee Sattayappa committed default in the payment of the rents agreed to be paid by him and had fallen into arrears of 2587 kalams of paddy equivalent to Rs. 17,044. 00. The suit OS No. 359 of 1948, District Munsif's court, Thiruthuraipoondi, was decreed in favour of the respondent. Thereafter, on 29/11/1951, the respondent filed IA No. 33 of 1952 for directing the realisation of the amounts due under the lease against the father of the petitioner and in the alternative, the relief assignment of the security bond was prayed for. On 29/3/1952, this application was allowed and on 8/1/1953, the security bond executed by the father of the petitioner on 27/6/1949 was assigned in favour of the respondent herein. On the basis of such assignment, she instituted a suit in OS No. 11 of 1953 for recovery of arrears against Sattayappa and Sadasiva (the father of the petitioner). On 22/12/1955, the suit was decreed against Sattayappa and insofar as the claim of the respondent against Sadasiva was concerned, her remedy was held to be by way of enforcement of the security. Thereupon on 2/1/1956, the respondent filed OP No. 29 of 1956 for enforcement of the security against the surety and the petitioner, among others, was also impleaded as the second respondent. Meanwhile, in 1956 there was a partition between Sadasiva and the petitioner and his sisters and the property over which the security bond was executed by Sadasiva on 27/6/1949, fell to the share of the petitioner. In IA No. 30 of 1976 in OP No. 29 of 1956, the petitioner claimed that he is an agriculturist, that he is entitled to the benefits of Tamil Nadu Act 8 of 1973 and that the decree in OP No. 29 of 1956 has to be scaled down. The petitioner also took up the position that though the amount sought to be realised was lease arrears the respondent was only enforcing the charge created under the security bond and therefore, the amount to be realised had nothing to do with the lease amount and therefore, the liability has got to be scaled down. This application was opposed by the respondent on the ground that the petitioner is not entitled to the benefits of the Act as he has been paying agricultural income tax and the decree is also one for recovery of lease arrears and therefore, it is not a debt which can be scaled down. An objection that the application is also barred by resjudicata was raised.

(2.) Learned counsel for the appellant strenuously contended that the arrears of the rent, when had been transformed into a debt by virtue of a decree having been granted against Sadasiva the father of the appellant, though his father stood as a surety for the payment of rent due and payable by Sattayappa Thever to the Receiver who was administering the State on behalf of the court, and when the appellant is an agriculturist within the meaning of the Tamil Nadu Agriculturists Relief Act, 1938 (4 of 1938 as amended in 1973, that under Section 19 of the Act the appellant is entitled to scaling down of the debt. We find no force in the contention. Debt has been defined under Section 3 (iii) of the Act thus:

(3.) Rent also has been defined under Section 3 (iv) :