P JUGRA LODHA DIED Vs. M NATARAJA NAICKER

JUDGEMENT

(1.) THIS is an appeal against the order of the Court below, allowing the petition tiled by the judgment-debtor for scaling down the decree debt.

(2.) THE appellant herein filed a suit, O.S.No. 5334 of for recovery of a sum of Rs. 11,945, due on a promissory note executed on 30th November, 1964 for Rs. 9,000 with interest at 12 per cent, per annum from the date of the promissory note till the date of decree and thereafter at 6 per cent, per annum with costs Even at that stage, the defendants raised a plea that they are entiled to the benefits of Madras Act IV of 1938. Having regard to that defence the plaintiff was awarded interest only at 6 per cent, per annum on the principal amount from date of the promissory note. Subsequent to the passing of the decree, the second defendant died and the first defendant filed an application, I. A. No. 8834 of 1974, claiming benefits under Madras Act IV of 1938, as amended by Madras Act VIII of 1973. That petition was however, dismissed on the ground that the interest has already been scaled down to six per cent, even while passing the decree, and, therefore, there is no scope for a further scaling down as sought for by the first defendant.

(3.) THE foremost point that is raised by the learned counsel for the appellant is that the Court below has not considered the objection raised by the decree-holder that the judgment-debtor's earlier application for relief under Madras Act VIII of 1973, having been rejected, he cannot again file an application for the same relief. It is also pointed out by the learned counsel that there are no materials placed before the Court below to prove that the first defendant was an agriculturist either on the date of the debt or on the date of the suit or on 1st March, 1972. It is pointed out by the learned counsel that though the first defendant, in his application for scaling down filed under section 19 has referred to the fact that he owns 9 acres of agricultural lands, no evidence has actually been adduced before the Court below, either oral or documentary, and therefore, the Court below is not justified in accepting the averment made in the application without positive proof that the applicant is an agriculturist.