RAVIKANTI KANOJI RAO AND ORS. Vs. SRI SRI SRI MIRJA SRI PURAPATI VIZIANAMA GAJAPATHIRAJU BAHADUR, MINOR RAJAH, VIZIANAGARAM AND ANR.

JUDGEMENT

(1.) THIS is an appeal under Clause 15 of the Letters Patent from the judgment of Wadsworth, J.,1 in an appeal against an order passed in execution proceedings in the Court of the District Judge of Vizagapatam. The question raised in the appeal before the learned Judge related to an amount of Rs. 676 which represented a premium on land described as "old waste." The payment of the premium was directed by the compromise decree. The appellants contended that that part of the decree which related to the payment of the premium was illegal by reason of Section 25 of the Madras Estates Land Act, as amended by the Madras Estates Land (Amendment) Act, 1934 (hereinafter referred to as the Amending Act) and therefore the case fell within the decision of this Court in Ambu Nair v. Kelu Nair, I.L.R.(1929)53 Mad. 805, The learned Judge dismissed the appeal as he was under the impression that the compromise decree was passed before the amendment of Section 25 in 1934. This was not in fact the case. The Amending Act received the Governor -General's assent on the 27th June, 1934, and the compromise decree was not passed until the 3rd October, 1934. The date on which the Amending Act came into force was not mentioned at the hearing before Wadsworth, J. We have no doubt that it was assumed by the parties that the decree was passed before the Amending Act became effective.

(2.) IT is now clear that when the compromise decree was passed it was unlawful to include therein a direction for the payment of the premium and this being the case that part of the decree cannot be executed. The judgment of the Division Bench which heard Ambu Nair v. Kelu Nair, I.L.R.(1929)Mad. 805, where all the authorities on the question are reviewed, leave no room for doubt. The learned advocate for the respondents seeks however to get out of the difficulty by pointing to the date when the petition asking for the passing of a compromise decree was filed in Court. It was filed on the 10th October, 1933, when a premium could be levied in respect of " old waste." His argument is that as the decree only embodied what had been lawfully agreed upon by the parties in October, 1933, the, decision in Ambu Nair v. : AIR1945Mad283 can have no application. We are unable to accept this contention. When the Court passed the compromise decree it was unlawful for the landholder to levy a premium. Therefore the Court had no power to pass, even by consent, a decree containing a provision which was unlawful by reason of a statute.