GANAPATHI SUBRAMANIA AYYAR MINOR Vs. ALLOOR GOPALASWAMI NAIDU

JUDGEMENT

(1.) This appeal raises an interesting point of law under the Madras Agriculturists' Relief Act, namely, whether a debtor could get a refund of the excess amounts paid by him to the creditor subsequent to 1st October 1937. The facts are fully and accurately stated in the judgment of the lower Court and it is not necessary to restate them except to the extent necessary for appreciating the point of law raised in the appeal.

(2.) Gopalaswami Naidu (defendant 1) executed a mortgage dated 1st October 1918 for a sum of Rs. 1900 in favour of Muthia and Subramania. Plaintiffs 1 and 2 are the sons of Muthiah. Plaintiffs 3 to 6 are the sons of Subramania. They instituted O. S. NO. 45 of 1934 on the file of the Court of the Subordinate Judge of Ramnad at Madura to enforce the said mortgage along with another mortgage with which we are now not concerned and obtained a preliminary decree on 25th January 1936. The final decree was passed on 31st March 1937. The decree-holders brought some of the mortgaged properties to sale in execution of the said decree in E. P. NO. 60 of 1940. Some of the items of the mortgaged property were sold on 19th January 1942 and a sum of Rs. 2565 was realised. The sale was confirmed on 20th February 1942 and part satisfaction of the decree was entered for a sum of Rs. 2421-9-0. On 22nd January 1944 plaintiff 3 received a further sum of Rs. 300. On 27th December 1945 the defendants filed I. A. NO. 44 of 1946 under Section 19 of Madras Act IV [4] of 1938 for scaling down the decree debt. The learned Subordinate Judge found that a sum of Rs. 1782-4-1 was the amount due under the mortgage decree, but the defendants paid a sum of Rs. 2721-9-0 towards the decree. He therefore held that the defendants paid an excess amount of Rs. 939-4-11. The plaintiffs preferred the above appeal against the said order of the learned Subordinate Judge.

(3.) The learned counsel for the appellants contended that the judgment-debtors are not entitled to a refund of the excess amount paid by them and relied upon the provisions of Section 8 (4) of Madras Act IV [4] of 1938 in support of their contention, whereas the learned counsel for the respondents argued that Subsection (4) of Section 8 is confined in its operation only to excess payments made prior to 1st October 1937. To appreciate the contention of the learned counsel it is necessary to consider in detail the scope of the relevant provisions of the Act. The relevant provisions of the Act read as follows: