AKELLA CHINA VENKATAVADHAMULU Vs. MUTHANGI BACHI RAMAYYA GARU

JUDGEMENT

(1.) The facts necessary for appreciating the contentions raised may be briefly narrated. To enforce a mortgage executed by the Akella family in favour of Muthangi Butchi Ramiah, on 18th June 1917, he filed O. S. No. 21 of 1930 on the file of the Court of the Subordinate Judge of Amalapuram. There was a preliminary decree against all the members of the joint family. On 12th April 1932 a final decree was passed. Defendants 1, 2, 3 and the 13th defendant are brothers. Defendants 5 to 8 are the sons of the first defendant. Defendants 33 to 35 are the grandsons of the first defendant being the sons of his son, the fourth defendant. Defendants 9 to 12 are the sons of the second defendant. The other defendants are purchasers of some of the items of the property. First defendant was adjudicated insolvent in 1926. In execution of the decree in E. P. No. 403 of 1941, the decree-schedule properties were sold on 17th and 18th of July 1942, and were purchased by the plaintiffs, Muthangi Ayyanna and Karra Suryanarayana on behalf of the defendants 30 and 31. Defendants 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 33, 34, & 35 filed E. A. No. 743 of 1942 for setting, aside the sale under Section 47 and Order 21 Rule 90 C. P. C. on various grounds. Defendants 2, 3, 5, 6, 13, 33, 34 and 35 filed E. A. No. 13 of 1946 for setting aside the sale under Order 34 Rule 5 C. P. C. by depositing the amount alleged to be due from them under the provisions of the Madras Agriculturists Relief Act. The learned Subordinate Judge dismissed E. A. No. 743 of 1942 on the ground that the sale was not vitiated by any of the irregularities alleged. He also dismissed E. A. No. 13 of 1946 on various grounds, the main ground being that the entire decree amount was not deposited. The above two appeals were filed against the said orders.

(2.) Mr. Somasundaram, the learned counsel for the appellants, contended that as the appellants, who are some of the mortgagors, deposited the amount payable by them under the Madras Agriculturists Relief Act, the entire mortgage decree is discharged on the principle that the mortgage is one and indivisible. In support of his argument he relied upon the decision in -- 'Kailasa Thevar v. Ramaswami Iyengar', AIR 1949 Mad 233 (A). In that case there was a mortgage decree. The decree was scaled down except as against the first defendant. When he filed an application for scaling down the decree, it was dismissed. The other defendants, against whom the decree was scaled down, paid certain amounts towards the decree. Then the first defendant deposited an amount equal to the difference between the amount of the scaled down decree against the other defendants and the payments made by them, and prayed that the deposit should be accepted and full satisfaction entered up and the entire hypo-theca released from the mortgage. The learned Judges held that the first defendant would be entitled to the relief asked for on the principle of the unity and the indivisibility of the mortgage. Mr. Justice Govinda-rajachari, who delivered the judgment, consi-dered the earlier case Jaw on the subject and came to the aforesaid conclusion. If this judgment represents the correct law on the subject, the appellants would certainly be entitled to succeed. But Mr. T. M. Krishnaswami Aiyar, the learned counsel for the respondents, contended that the said judgment was not correct and that it required reconsideration. His argu-ments may be concisely stated as follows: The Madras Agriculturists Relief Act was enacted to provide for the relief of indebted agriculturists in the Province of Madras, and, for that object, scaled down the liability of the debtors who are agriculturists. It was not intended to affect the rights of creditors against non-agriculturists. "Debt" is defined in the Act as a liability due from an agriculturist, and it will be scaled down under Section 7 of the Agriculturists Relief Act notwithstanding any law to the contrary. It is therefore necessary to construe the sections in such a way as to affect the right of the creditor, to proceed against his non-agriculturist debtors. In so far as the Act provides for scaling down the debt of an agriculturist debtor to that extent the general law is modified. In support of his contention he mainly relies upon -- 'Ramier v. Srinivasiah', A. I. R. 1941 Mad 204 (B). There a mortgage was executed in 1916 by the deceased father-in-law of the first defendant who was not an agriculturist. The applicant, who claimed relief under the Act, was the second defendant in the suit, who was the usufructuary mortgagee over the same properties under a deed dated 22nd May 1920. He was an agriculturist. The third defendant, who had acquired the equity of redemption of certain items, was not an agriculturist. The puisne mortgage right of the applicant was sub-mortgaged to another person who had deposited a certain amount to the credit of the decree. The Subordinate Judge held that the applicant was not entitled to the benefits of the Madras Agriculturists Relief Act because the scaling down of the decree in his favour would result in a benefit to the other defendants who were not agriculturists. It would be seen from the aforesaid facts that the applicant, who was the puisne mortgagee was an agriculturist, whereas the mortgagor was not an agriculturist. The learned Judges held that he was entitled to relief under the Madras Agriculturists Relief Act. The learned Judges observe at page 204 as follows:

(3.) Subsequent to the reference to the Full Bench, the Supreme Court had to deal with the same question. They held in -- 'Ramaswami Iyengar v. Kailasa Thevar', as follows :