RENGARAJ NAIDU AND ORS. Vs. BAKTHAVATSALAM

JUDGEMENT

(1.) THESE appeals are directed against the orders refusing to stay the execution of the decree under Section 20 of Act IV of 1938. The decree in the case was passed in 1965. The appellants claim that they are entitled to have the decree scaled down under Section 19 of the said Act. The orders appealed against took the view that the decree for mesne profits with which decree we are concerned does not create a debt and relied on the decision of this Court in Meera v. Abdul Kadir : AIR 1939 Mad 471 . The applications were dismissed.

(2.) DURING the arguments before us various questions were discussed. It was contended that an executing Court when approached under Section 20 for stay must automatically grant the stay and the decision of this Court in Durairajan v. Mohammad Kuthoose, (1974) 87 L.W. 877 was relied on. Our attention was also drawn fairly by the learned Counsel on behalf of the appellants to the decision of this Court in Rathinam v. Thangammal : AIR 1976 Mad 309 , which has taken an opposite view. One of us sitting singly had occasion to consider the same question in Nachimuthu Chettiar v. Moorthammal, (1976) T.L.N.J. 367 and the view taken therein was that stay can be granted under Section 20 on the Court being prima facie satisfied that the person, applying is entitled to the benefits of the Act.

(3.) THE benefit claimed herein is a benefit to have the decree scaled down under Section 19 of the Act. Though "debt" as defined in Section 3(iii) of the Act mentions any liability in cash or kind, whether secured or unsecured, due from an agriculturist whether payable under a decree or order of a civil or revenue Court or otherwise, Section 19 introduces further restrictions in relation to the persons who can claim the benefits of that section. Section 19, it may be noticed, applies only to cases where a decree had been passed. That decree, under the section, must be one that has been passed before the publication of the Tamil Nadu Agriculturists Relief (Amendment) Act, 1972 in the Tamil Nadu Government Gazette. Further, the section insists that the decree must be for "the repayment of a debt". In this case, the decree is for mesne profits, as was mentioned earlier. This Court has held in Meera v. Abdul Kadir : AIR 1939 Mad 471 , that ordinarily the relation between co -owners when one of them is in possession of common funds is not that of creditor and debtor and hence the liability to pay the co -owners their share of the fund is not covered by Act IV of 1938 as it is not a debt within the meaning of the Act. We think that the principle of this decision must apply to the case of one co -owner of the property having to pay the co -owners the excess of the profits collected by the co -owner in possession of the property. In such cases there is no debtor -creditor relationship and the debt can come into existence only when the amount of the profit that, is prayed for is quantified and the decree for that amount is passed by the Court. The decree in this case being one such passed in a suit for partition, where the co -owners have been in possession of the property and there had been apparently excess receipt of profits by those against whom the decree had been passed, we are not able to hold that the decree in this case is one for repayment of a debt.