CHINTAPALLI VENKATARATNAM Vs. MERLA SESHAMMA

JUDGEMENT

(1.) This civil miscellaneous appeal has been placed before us under the directions of the Honourable the Chief Justice for a reconsideration of the decision in 'C.M.A. Nos. 316 and 391 of 1947 by our learned brethren Subba Rao and Somasundaram, JJ. As the case itself has been referred to us and not merely a question, it is necessary to state the facts out of which this appeal arises in order to appreciate the questions that arise for decision.

(2.) The legal representative of the third defendant in O. S. No. 16 of 1939 and who is also her adopted son is the appellant in this appeal and also the petitioner in C.M.P. Nos. 8384 and 8627 of 1950. O. S. No. 16 of 1939 was Instituted to enforce a mortgage dated 6th November 1926 for a sum of Rs. 12,000, executed by defendants 1 to 3 and also by the first defendant as guardian of his minor son the fourth defendant. The first defendant is the husband of the second defendant and the third defendant is the first defendant's paternal uncle's widow. She adopted one of the sons of the first defendant. The mortgage (Ex. A) was executed to discharge certain earlier debts. The property covered by the mortgage belonged originally to certain Chintapam people who mortgaged the property to the plaintiff on 24th May 1920 for a sum of Rs. 5,000 (Ex. D). They were also indebted to the same plaintiff under a promissory note dated 1st December 1921 (Ex. E), the principal of which was Rs. 1,000. Under two documents dated 14th June 1925 (Ex. G) and 12th October 1925 (Ex. H) the property was purchased by the second defendant subject to earlier mortgage and also with an obligation attached that from and cut of the consideration for the sale the debt due under the promissory note should be discharged by her. It is common ground that the purchase by the second defendant, the wife of the first defendant was for the benefit of the family. The suit was instituted on 15th October 1939 and in that suit the third defendant claimed, taking advantage of the provisions of Madras Act IV of 1938, that she was entitled to have the debt scaled down along with the other dependants who also claimed similar reliefs. She pleaded further 'that she was only a surety for the debt and her liability was co-extenstive with that of the principal debtors. The learned Subordinate Judge who tried the suit allowed the benefits of the Act to the third defendant also to the same extent as he had allowed to the other defendants who were the other mortgagors, that is, the debt was scaled down so as to reduce the debt due under the suit mortgage to the principal amounts due under Exs. D and E.

(3.) There were two appeals against that decision to this Court one by the plaintiff which was A. S. No. 6 of 1942 and the other by the defendants 3 and 7, A. S. No. 516 of 1941. We may leave out of consideration A S. No. 618 of 1941 as it has no bearing to the present controversy. In A. S. No. 6 of 1942 the plaintiff-creditor claimed that she was erititled to a decree against the third defendant for the principal sum mentioned In the suit mortgage with interest scaled down according to the provisions of the Act, and that the decree granted by the lower Court giving her also the benefits of the provisions of the Act so as to reduce the debt further as in the case of other mortgagors was not justified. This Court held that the third defendant was not entitled to the benefits of the Act in the same and to the same extent as the other defendants as she became a debtor for the first time only when she joined in the execution of the suit mortgage in 1926. The learned Judges were not satisfied that the position of the third defendant was that of a surety. 'The judgment of this Court was pronounced on 2nd December 1943. After this in the usual course, a final decree in the suit was passed on 27th March 1946. The creditor thereafter filed E. P. No. 148 of 1946 on 23th November 1946 to bring the mortgaged properties to sale. Apparently these proceedings dragged on for a long time for some reason or other and meanwhile the Madras Agriculturists' Relief Act was amended by Act XXIII of 1948 which came into force on 25th January 1949. Under the amended provisions a new explanation (Explanation III) to Section 8 was added by which the view taken by this Court regarding the requirements that go to constitute "the same creditor" and "the same debtor" within the meaning of the Act was radically altered. With a view to make this provision retrospective they introduced also Section 16, the construction of which is the subject-matter of this appeal. Taking advantage of these provisions the third defendant in the first instance applied under Section 20 of the Act in E. A. No. 219 of 1949 to stay the execution of the decree which was granted by the Court on 28th June 1949; the petition it-self having been filed six days earlier. This was followed, by an application to scale down the decree. This was I. A. No. 981 of 1949, dated 10th August 1949. The application was naturally opposed by the decree-holder on various grounds. The learned Subordinate Judge, who disposed of the matter finally rested his decision on the ground that as the decree- that was ultimately passed namely the preliminary decree was one passed by the High Court, the remedy, if any, of the third defendant was to have moved this Court for scaling down the decree and that he had no jurisdiction therefore to deal with the matter. He also expressed his opinion on the other points also which was adverse to the third defendant. In the result, the application, I.A. No. 981 of 1949, was dismissed by the learned Subordinate Judge on 6th March 1950. Against that decision the legal representative of the third defendant, the third defendant having died in the meanwhile, preferred C.M.A. No. 460 of 1950 on 18th July 1950 and by way of abundant caution on 14th August 1950 he also filed C.M.P. No. 8627 of 1950 to scale down the decree debt in A. s. No. 6 of 1942.