R M S BENJAMIN Vs. DEVADOSS

JUDGEMENT

(1.) This appeal arises out of a suit for redemption. There was a usufructuary mortgage under a registered document dated 24-8-1892 for a sura of Rs. 31-8-0 in favour of Jacob and Mariammal. The mortgagees who were in possession usufructuarily sub-mortgaged their rights in favour of one Marivel Servai for the same sum of Rs. 31-8-0 by a deed dated 21-8-1910 duly executed and registered. As sub-mortgagee Marivel Servai was in possession. In execution of a money decree obtained against Marivel Servai by the second defendant, the mortgage rights of Marivel Servai which he obtained under the deed dated 21-8-1910 were brought to sale and the first defendant purchased the property in court auction and took delivery of possession. The first defendant therefore became entitled to the mortgagee's rights in the usufructuary mort-gage dated 24-8-1892. The plaintiffs as representatives of the original mortgagors, instituted O. S. No. 504 oi 1946 for redemption. The prayer for redemption waa granted on plaintiff's paying Rs. 31-8-0, the principal amount and other sums including expenses stated to have been incurred by the first defendant in O. S. No. 219 of 1942, a suit instituted by him to recover possession of the property, as his possession was disturbed by the plaintiffs. There were also certain criminal complaints and counter-complaints of trespass between the parties and it is the first defendant's case that he incurred further expenditure in those proceedings. The first defendant appealed against the decree in respect of the expenses incurred by him in the criminal proceedings which were disallowed by the trial court and for costs. During the pendency of the appeal, the plaintiffs filed an application I. A. No. 205 of 1949 for scaling down the mortgage debt under Section 9-A, Clause (3), Madras Agriculturists' Relief Act, 1938, as amended by Act 23 of 1948. The learned District Judge held that the amended provision of the Act applied to the case and the principal amount must be deemed to have been wiped out by reason of the application of the Act, rejected the claim of the first defendant for expenses incurred in the criminal proceedings, and as a result modified the decree of the trial court by granting him only the costs of the suit and deleting the principal sum of Rs. 31-8-0 from the decree. The first defendant has preferred this second appeal.

(2.) As regards the expenses incurred by him in the criminal proceedings, the first defendant is not entitled to get the same from the mortgagor, as, under Section 72, Transfer of Property Act, a mortgagee is entitled to spend only such money as is necessary among others under Clause (d) for making his own title thereto good against the mortgagor. However much the expenses incurred by him in O. S. No. 219 of 1942 might be held to be justified, in so far. as the expenses incurred for the proceedings in the criminal courts are concerned it could not be said that those expenses were incurred for the purpose of making his own title good against the mortgagor. There is no substance in this contention and I agree with the learned District Judge that the first defendant is not entitled to the expenses incurred by him in regard to the criminal proceedings.

(3.) It is contended that the plaintiffs are not entitled to any reliefs by way of scaling down under Madras Act 23 of 1948 for several reasons. I. A. No. 205 of 1949, it is urged, should have. been before the District Munsif who passed the decree and the appellate court had no jurisdiction to entertain an application for scaling down as it was the trial court alone that had jurisdic-tion under Section 19 of the Act to scale down the debt and amend the decree. In support of this contention the learned counsel relied on a decision of a Bench of this Court reported in -' Gangaraju v. Ramayya', AIR 1939 Mad 483 (A), where it was held that Sections 19 and 20, Madras Agriculturists' Relief Act should be read together and that the explanation of the expression "court which passed the decree" in Section 20 equally applies to Section 19. The "court which passed the decree" is defined in the explanation to Section 20 of the Act, where it is stated that the expression or words to that effect shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance. In that case a decree was passed by the lower court and an appeal was filed which was dis missed by the appellate court. As proceedings in execution were taken, the judgment-debtors applied under Section 20 for stay of execution and then presented an application under Section 19 of the Act to the trial court which passed the decree for scaling down. The trial court refused to take cognizance of this application, as in its opinion, the decree having been appealed against, its jurisdiction to amend the decree ceased. On these facts the High Court held that the appli cation to scale down the decree debt and amend the decree was properly made to the court of first instance and that court had Jurisdiction to deal with it. In the course of his judgment Madhavan Nair J. observed at page 484 of the report thus