SRINIVASALU NAIDU Vs. S.K. THANGAVELU CHETTIAR

JUDGEMENT

(1.) THIS appeal is directed against the appellate order of the District Judge, Chingleput, in A.S. No. 216 of 1956. That appeal was against the order of the District Munsif of Conjeevaram in M.P. No. 461 of 1956 in O.S. No. 318 of 1951. That was an application of the judgment -debtor in a mortgage suit for scaling down the decree debt in accordance with Madras Act IV of 1938. He sought to obtain the relief of scaling down in pursuance of Section 16 of the Amending Act XXIII of 1948. This Act came into force only on 25th January, 1949. The District Munsif dismissed the application for scaling down the decree on the ground that the parties had come to a compromise in I.A. No. 15 of 1952 which was an application made by the judgment -debtor to set aside the ex parte decree. The agreement alleged was that in consideration of the decree -holder giving up a sum of Rs. 150 from out of the decree amount the judgment -debtor agreed not to pursue his application for setting aside the ex parte decree. The learned District Judge has agreed with the District Munsif in this view and has also relied on the decision in Narayanan Chettiar v. Annamalai Chettiar : AIR1953Mad914 , for holding that the appellant was not entitled to apply for scaling down the decree debt.

(2.) THIS decision has been reversed by the Supreme Court in Narayanan Chettiar v. Annamalai Chettiar : AIR1959SC275 . Their Lordships of the Supreme Court have pointed out in that case that the relief given by the amending Act is a separate relief which the judgment -debtor was entitled to ask for by a separate application, even though in the case of a decree passed after the coming into force of the amending Act this relief had not been prayed for. It is true in the Supreme Court case the facts fell under Section 16(2) of the Amending Act. That is to say the suit in that case was instituted before the commencement of the amending Act. But the decree passed there had not become final before the commencement of the Amending Act. In this case the suit itself was instituted after the commencement of the amending Act and it consequently falls under Section 16(1). The dictum of the Supreme Court that in cases falling under Sub -clause (2) there was no bar of constructive resjudicata merely because the debtor had not applied for relief when the decree was passed, must, in my opinion, equally apply to a case governed by Section 16(1) because on principle there is no difference between a case falling under Sub -clause (1) and the one governed by Sub -section (2) of Section 16 in the matter of relief granted by the amending Act of 1948. In both the cases the decree was passed after the Act came into force and therefore Narayanan Chettiar v. Annamalai Chettiar1, cannot be relied on as good law now.

(3.) THE orders of the lower Courts are, therefore, set aside. The District Munsif will restore M.P. No. 461 of 1956 to his file and dispose of it afresh. No costs.