(1.) THE first defendant in O.S. No. 299 of 1958 on the file of the Court of the District Munsif of Pudukottai is the appellant. One Venu Ammal had executed a mortgage on 2nd September, 1945 in favour of one Krishnamurthi, whose legal representative, is the first respondent. After the death of Venu Ammal the first respondent filed a suit on the said mortgage against the daughters of the said Venu Ammal, for recovery of the mortgage amount. Defendants 1 and 2, the daughters of the mortgagor, remained ex parte and a final decree in the suit was passed on 6th January, 1972 for a sum of Rs. 1,947. After the passing of the said final decree, the first defendant, one of the daughters filed ah application I.A. No. 1369 of 1974 in the said suit seeking an amendment of the decree on the ground that she is entitled to the benefits of the Tamil Nadu Act (IV of 1938 as amended by the Act VIII of 1973). The said application was resisted by the first respondent, decree -holder, contending that the appellant first defendant is not an agriculturist entitled to the benefits of the said Act IV of 1938 and therefore the mortgage decree cannot be scaled down under the provisions of the said Act.
(2.) THE trial Court took the view that as the suit was filed against the two daughters of the mortgagor, Venu Ammal, after her death and the estate of Venu Ammal in the hands of the appellant is alone sought to be proceeded against, the daughters of Venu Ammal cannot claim the benefits of the said Act, and that as the estate of the deceased Venu Ammal alone is sought to be made liable for payment of the decree the provisions of Act IV of 1908 will be inapplicable to such a case. In support of the said view, the trial Court relied upon the decision of a Division Bench of this Court in Palaniappa Chettiar Estate represented by First Executor, Chokkalingan Chettiar v. : (1945)2MLJ410. The application for scaling down was therefore rejected.
(3.) IN this appeal, the learned Counsel for the appellant contends that both the Courts below are in error in thinking that the claim put forward by the appellant for scaling down of the decree debt under the provisions of Act IV of 1938 is not sustainable in view of the decision of this Court in Palaniappa Chettia -Estate represented by First Executor Chockalingam Chettiar v. : (1945)2MLJ410, that the said decision is inapplicable to the facts of this case, that the correct legal position is that the appellant who is the legal representative of the deceased Venu Ammal and who is sought to by made liable for the decree -debt due by Venu Ammal is entitled to claim the benefits of that Act and that the reasoning of the Courts below that since the mortgage debt is sought to be recovered from the estate of Venu Ammal the appellant who is representing the said estate cannot claim the benefits under the said Act cannot be sustained.