K JAGANNATHAM CHETTY Vs. V PARTHASARATHY IYENGAR DEAD

JUDGEMENT

(1.) This application is for scaling down the mortgage decree debt in C. Section No. 42 of 1933, and the applicants are some of the judgment debtors. Preliminary decree in the above suit was passed on 31-7-1934, and the final decree was passed on 12-2-1935. There was a balance of Rs. 6,759-5-0 claimed under the decree. The mortgage property was brought to sale and the proclamation was settled on 25-4-1950. The sale has been stayed by my order in view of this application. The judgment-debtors took out application No. 1147 of 1938 under Section 19 of Act 4 of 1938 and an order was made on 4-9-1939 scaling down the debt. An appeal was preferred, O. S. A. No. 57 of 1940 by one of the judgment-debtors against the order scaling down the debt and on 28-21941, the appellate Court found on scaling down the debt that a sum of Rs. 3,391-3-0 was due on 1-10-1937 and further ordered the judgment-debtors to pay interest thereon at 6 per cent per annum from 1-10-1937 with proportionate costs of the parties. The amount now under the proclamation of sale represents the said sum of Rs. 3,391-8-0 with interest and costs of further proceedings.

(2.) Objection is raised to this application on the-ground that the decree debt having once been scaled down by virtue of an order of this Court in O. S. A. No. 57 of 1940, there can be no further application for scaling down. The applicants contend that by reason of the amending Act (Act 23 of 1848) they have become entitled to apply and if the amended provisions as to the method and principles are applied for the sealing down, there will be nothing due under the decree and the whole amount at it stood on 1-10-1937, would stand wiped out. Learned counsel for the applicants relics on Section 16, Clauses (ii) and (iii) of the amending Act (Act 23 of 1948) and states that he is entitled to maintain this application and if this application is held, to be maintainable, by virtue of the application of the provisions of Explanation 1 which hare been newly incorporated in the amending Act, the amounts paid towards the decree must be appropriated towards the principal and if so appropriated there will be nothing due, since under Clause (i) of Section 8, all interest due up to 1-101937 must be deemed to have been discharged.

(3.) The first point for consideration is whether the present suit out of which this application is taken out comes under that class of suits mentioned in Section 16 of the amending Act 23 of 1948. Clause (ii) of Section 16 states that the amendments made by this Act shall apply to all suits and proceedings instituted before the commencement of this Act, in which no decree or order has been passed or in which the decree or order passed has not become final, before such commencement. This clause is relied upon and it is submitted that even though, the decree in C. S. No. 42 of 1933 has become final before the commencement of this Act, still the execution proceedings are pending and as such they have not become final and that therefore the applicants are entitled K. Jagannatham Chetty vs. V. Parthasarathy Iyengar (dead) and Ors. (27.09.1950 - M... Page 3 of 9 to maintain this application for scaling down. I am unable to agree with the learned counsel that execution proceedings are contemplated in the word "proceedings" in Clause (ii) The proceedings in Section 16 must relate to proceedings instituted for repayment of a debt and not to execution proceedings which are for enforcement of a decree or order. That by "proceedings" execution proceedings are not intended is also clear if'' reference is made to Clause (3) when execution of a decree or order arising out of a suit or proceeding is separately contemplated. In any event, the present execution proceedings commenced after the commencement of the Act, that being an application of 1949.