K N NANNIER Vs. KRISHNAVENI AMMAL

JUDGEMENT

(1.) THIS is an appeal from an order of the Subordinate Judge, Salem, scaling down a mortgage decree by applying the provisions of S. 13-A of the Madras agriculturists Relief act, 1938 (to be referred hereafter as the Act ). Substantially, two questions fall for determination in the appeal: the first of them has given rise to this reference. They are:

(2.) SECTION 13-A was introduced into the Act by the Amending Act XXIII of 1948. That section says:

(3.) THE facts giving rise to the present appeal are these. Kalia Pillai, the husband of the respondent, executed between the years 1929 to 1931, three mortgage deeds in favour of the first appellant and his father to secure three sums of money, in all amounting to Rs 70,000, advanced by the latter. Kalia Pillar had created a security under the documents over a large extent of agricultural lands. The mortgages bore interest at 9% per annum with three monthly rests, there being an agreement to pay interest at 15 per cent per annum in case of default. Although a considerable sum of money, amounting a little over Rs. 87, 000, had been paid either in cash or by sale of certain items of mortgaged properties to the mortgagees, it was found that a sum of Rs. 1,46,561-15-6 was due by the year 1948, and a suit (O. S. No. 8 of 1948) was instituted by the appellants in the lower court for realising that amount. Even two years earlier, the respondent, wife of the debtor Kalia Pillai, had purchased the mortgaged properties in execution of a money decree against her husband. She was impleaded as a party to the mortgage suit along with her husband. Neither Kalia Pillai nor his wife was an agriculturist entitled to the benefits of Act IV of 1938, at the time when the suit was instituted, though, as we shall show presently, the amendment introduced into the Act during the pendency of the suit entitled either or both of them to certain reliefs under S. 13-A.