V ANANTHA RAO Vs. V VENKATA KODANDARAO

JUDGEMENT

(1.) The Judgment of the Court was delivered by the Hon'ble The Chief Justice : This Civil Miscellaneous Appeal raises a question under the Madras Agriculturists' Relief Act. The judgment-debtors in O. S. No. 36 of 1930 on the file of the Subordinate Judge's Court, Visakhapatnam executed two promissory notes, one dated 14-10-1911 for Rs. 1,000/- and the other in the year 1912 for a sum of Rs. 700/- in favour of the respondent's father one Venkatarao. Various payments were made under the promissory note of 1912 and, for the balance it was renewed for Rs. 700/- on 30-7-1920. On 29-11-1920, for the balance of the amount due under the said two promissory notes and for the interest due to the creditor on another mortgage deed dated 14-10-1911 executed by the same debtors in his favour and for a small amount of cash, a fresh promissory note was executed for a sum of Rs. 4,431/- in favour of the creditor. On 13-8-1923, Venkatarao assigned the said promissory note to his son Kodanda Rao. It does not appear whether the assignment was for consideration or for collection. It is also not clear whether the assignment was made for his personal benefit or for collecting the amounts on behalf of the family. After the assignment, the promissory note was again renewed in favour of Kodanda Rao on 24-11-1923 for a sum of Rs. 5,624/-. On 25-11-1925 the amout due under the latest promissory note was split up and two promissory notes were executed in favour of the same creditor for Rs. 2,001-1-7 and Rs. 4,912-13-0 respectively. Another prmissory note was executed on 30-4-1928 for the interest due on the aforesaid two promissory notes. On 13-5-1930, the suit promissory note was executed for the amount due under two promissory notes dated 25-11-1925 and 30-4-1928. The suit was filed for the recovery of the amount due under the promissory note dated 13-5-1930 with interest payable thereunder. The learned District Judge scaled down the decree under .the provisions of the Madras Agriculturists' Relief Act. The judgment-debtors, who filed the application for scaling down the decree, preferred the above appeal.

(2.) The learned Counsel appearing for the appellants contended that the learned District Judge was worng in not excluding the sum of Rs. 2,882-2-0, the interest due under the mortgage deed dated 14-10-1911 on the ground that the promisee under the promissory note, Ex. D, was different from the creditor under the mortgage deed dated 14-10-1911. He contends that that assumption was wrong and that, as a matter of fact, the creditor under the mortgage deed is the same as the creditor under the promissory note. The learned District Judge in paragraph 3 of his judgment stated :

(3.) It is then contended by the learned Counsel for the respondent that the promissory note Ex. P-44 was assigned by Anantha Rao in favour of his son Kodandarao and that the subsequent promissory notes were executed or renewed in his favour and therefore the assignee is not the same creditor as the creditor under the promissory note dated 29-11-1920. This argument was not raised in the court below. If it was raised, the judgment-debtors might have established that the creditors both under the promissory note dated 29-11-1920 and under the later promissory notes, though co nomine different, in fact represent the family. We cannot also hold that the fact that the promisee under the promissory note dated 24-11-1923 is the assignee from the pro.nisee under the earlier documents makes any difference in the application of the provisions of the Act. The governing provision is Section 8 sub-section 4, Explanation III of Act IV of 1938. Explanation III reads: