LAWS(MAD)-1977-1-40

VELU PANDAR AND ORS. Vs. PRAKASAM ALIAS PADMINI

Decided On January 28, 1977
VELU PANDAR AND ORS Appellant
V/S
PRAKASAM ALIAS PADMINI Respondents

JUDGEMENT

(1.) This appeal has been filed by the defendants in O.S. No. 250 of 1973 and the respondents in I.A. No. 92 of 1975 on the file of the Subordinate Judge, Tiruchirapalli. The respondent herein filed a suit for declaration that the sale deed dated 5th May, 1948 said to have been executed by her father in favour of one Pappammal is null and void and in the alternative for reconveyance of the property on payment of the sale price. She also claimed a decree for redemption on the basis that the said sale deed in favour of Pappammal was a mortgage by conditional sale. The Trial Court dismissed the suit with costs holding that the sale deed is true and valid, and that it is not a mortgage by conditional sale. On appeal in A.S. No. 428 of 1968, a Division Bench of this Court held that the said sale deed in favour of Pappammal was a mortgage by conditional sale and therefore passed a preliminary decree for redemption and permitted the plaintiff to depo it into Court a sum of Rs. 8,500 towards principal and Rs. 7,963 towards interest accrued at the rate of 6% per annum from the date of mortgage till date of suit, as a condition for redemption.

(2.) Thereafter the plaintiff filed I.A. No. 92 of 1975 before the lower Court for amending the decree under Section 19 of the Tamil Nadu Act IV of 1938 here in after referred to as the 1938 Act claiming benefits under that Act. The said application for amendment of the decree was opposed by the appellants mainly on the ground that the application for amendment of the decree should have been filed in this Court, which passed the appellate decree and not before the lower Court. The Court below rejected the said objection as to jurisdiction relying on the decision of the Full Bench of this Court in Ramanathan Chettiar v. Ramanathan Chettiar, 1960 1 MadLJ 1 , wherein it has been categorically ruled that the Court to amend a decree under Section 19 would be the execution Court under Section 37 of the Code of Civil Procedure and therefore an application to scale down a decree debt by amending the decree could be properly made to the Court of the first instance although the decree of that Court had been superseded by the decree of the appellate Court, and that the principle that the original decree in a case where an appeal has been filed is superseded and that therefore the appellate decree is the only decree between the parties for purpose of Section 19 would have no application to a case where the appellate decree was itself capable of being amended under Section 19. The lower Court amended the decree by scaling down the mortgage money due by the respondent with reference to the provisions of Section 9(A) of the 1938 Act as amended, to Rs. 947-68 as against the amount referred to in the decree of this Court is A.S. No. 428 of 1968. The order of the lower Court scaling down the mortgage debt and amending the decree accordingly has been challenged by the appellant.

(3.) In this appeal, apart from raising the question of jurisdiction of the Court below to amend the appellate decree passed by this Court under Section 19, the appellant has also put forward two fresh grounds of attack. The ground relating to jurisdiction of the lower Court to amend the appellate decree passed by this Court is not tenable in view of the decision in Ramanathan Chettiar v. Ramanathan Chettiar, 1960 1 MadLJ 1 , wherein, as pointed out by the Court below, the question whether the Court of the first instance can amend a decree passed by the appellate Court was specifically considered and decided. In that case it was pointed out that Sections 19 and 20 of the Act have to be read together, Section 20 being complementary to Section 19, that the Explanation to Section 20 would apply to Section 19 as well as to the meaning to be given to the expression "Court which passed the decree", that the effect of the Explanation is to give a statutory definition of the expression "the Court which passed the decree" that an application to scale down a decree debt and to amend the decree could, therefore, be properly made to the Court of the first instance although the decree of that Court has been superseded and replaced by a decree of the appellate Court, that an application under Section 19(1) had therefore, to be made Only to the Court of the first instance which passed the decree even though the appellate Court had either affirmed, modified or reversed the decree of that Court. Therefore, this question is no longer res Integra.