NUNNA SESHAMMA Vs. KALLA GANGARAJU

JUDGEMENT

(1.) This second appeal arises out of a suit for recovery of Rs. 524-11-9 being the amount of principal and interest alleged to have been collected by the 1st defendant in excess of the amount really due to him in execution of the decree in O. S. No. 79 of 1935 on the file of the Court of the District Munsif of Kovvur. The plaintiff and the deceased husbands of the defendants 2 and 3 were brothers. On foot of a promissory note executed by them in favour of the 1st defendant, the latter filed O. S. No. 79 of 1935 and obtained a decree on 19-2-1936. One of the judgment-debtors mortgaged his property and as part of the consideration for the mortgage, directed the mortgagee to discharge his liability under the decree in O. S. No. 79 of 1935 to the extent of his l/3rd share which was Rs. 250/-. The mortgagee accordingly paid on 15-6-1936 a sum of Rs. 250/- towards the decree in O. S. No. 79 of 1935, EX. A-5 being the receipt of the decree-holder for this sum. The decree in O. S. No. 79 of 1933 was subsequently scaled down on a petition filed by one of the judgment-debtors, Ex. A-2 dated 15-9-1939 being the decree as scaled down. On 5-2-1948 an execution petition E. P. No. 70 of 1948 was filed by the decree-holder and a sum of Rs 746-8-0 was realized in full satisfaction of the decree from the judgment-debtor. There were previous execution petitions which were relied upon by the decree-holder for saving time for E. P. No. 70 of 1948 but.it is unnecessary to refer to them. On the allegation that the decree-holder in O. S. No. 79 of 1935 had omitted to give credit to the sum of Rs. 250/- paid in partial discharge of the decree by the mortgagee from one of the judgment-debtors, the plaintiff, who had paid the entire amount of the decree as scaled down, brought the present suit for recovery of the amount collected by the decree holder in excess of the amount that would have been really due if credit had been given to the sum of Rs. 250/- paid on 15-6-1936 to the decree-holder as per receipt Ex. A-5. The contesting defendant raised the plea that the suit was barred by Res Judicata and limitation and also that the sum of Rs. 250/~ paid by the mortgagee from one of the judgmentdebtors in partial discharge of the decree had been taken into consideration at the time when the decree was scaled down. The Courts below found that the sum of Rs. 250/- was not taken into consideration at the time of scaling down the decree and that the decision of the Court, scaling down the decree, did not constitute Res Judicata and there was no bar to a determinaticn of the amount really payable under the decree. The Courts below also held that the suit was not barred by limitation.

(2.) In this second appeal, the learned Advocate for the appellant challenges the findings of the Courts below on all the points. The question whether the sum of Rs. 250/-paid to the decree-holder on 15-6-1936 was taken into consideration by the Court when it scaled down the decree, is very difficult to decide. The records connected with the proceedings for scaling down the decree are not available in spite of the attempts made by the appellant for obtaining copies. It is clear from Ex. A-3, an Execution Petition No. 58 of 1939 dated 15-2-1939 filed by the decree-holder for execution of the decree in O. S. 79 of 1935 that the decree-holder omitted to give credit to the payment of Rs. 250/-. This was improper conduct on his part. It is urged on behalf of the appellant that the sum of Rs. 250/- might have been adjusted towards the interest payable on the debt and the principal sum of Rs. 400/-, and interest subsequent to 1-10-1937 might have been fixed by the Court scaling down the decree as the amount due and payable thereunder. Whether the sum of Rs. 250/- was an open payment and whether in 1939 when the decree was scaled down, the law as regards the appropriation of open payments had been settled in the manner in which it was settled by -the later decisions of the Madras High Court, is a matter of conjecture. It is again not possible to say whether, as a matter of fact, the sum of Rs. 250/-was appropriated to the outstanding interest on the loan which had been contracted on 13-3-1932. Having regard to the principal and interest determined as due and payable under the decree when it was amended under the scaling down provisions of the Madras Act IV of 1938, it is'likely, as observed by the lower appellate Court, that the sum of Rs. 250/-was not taken into accout at the time when the decree was scaled down. In any case, it is a question of fact on which one of two inferences is possible and I am unable to differ from the conclusion of the lower Appellate Court that the payment of Rs. 250/- was not taken into account by the Court when the decree was scaled down.

(3.) A further question arises whether the order scaling down the decree operates as Res Judicata and bars the plea of the judgment-debtor that in' addition to the relief given to him as a result of the scaling down operations, he is entitled to a further reduction of Rs. 250/-. A proceeding under Madras Act IV of 1938 for scaling down the debt of an agriculturist and for the amendment of a decree passed against him on such scaling down, is an original proceeding, the decision in which is subject to appeal. A proceeding for scaling down the debt and amending the decree on such scaling down is not a suit and therefore might not fall within the literal terms of Sec. 11 C. P. Code. At the same time, it has been held by the Judicial Committee that section 11 is not exhaustive of the circumstances in which an issue may be Res Judicata. As observed by the Judicial Committee, the application of the rule by the Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law. See Kalipada v. Dwijapada and Sheoparsan v. Ramanandam . The Judicial Committee laid down in Hook v. Administrator General of Bengal that the plea of Res Judicata still remained apart from the limited provisions of Section 11 C. P. Code and referred with approval to an earlier decision of the Board in Ram Kirpal v. Rup Kuari which held that the binding force of an interlocutory judgment in execution proceedings depended not upon the section of the C. P. Code but upon general principles of law. In Ramachandra v. Ramachandra the Privy Council again reiterated the principk that a decision in order to. constitute Res Judicata need not necessarily have been given in a prior suit. The principle which prevents the same case being twice litigated is of general application, and is not limited by the specific words of section 11 C. P. Code in this respect. It is therefore clear that the decision of the Court scaling down the decree as regards the amount payable under it would be Res Judicata between the parties in a subsequent proceeding. The further question is whether the order for scaling down the debt and amendment of the decree could be construed as negativing the present claim of the plaintiff. The plaintiff was one of three judgment-debtors. His brother, who was a co-judgment-debtor with the plaintiff, had arranged for payment of Rs. 250/- towards the decree. There is nothing to show that the plaintiff was not aware of this payment. Indeed, the plaintiff has not even examined himself in this suit. When the Court scales down a debt and amends a decree, it really takes an account of the amount remaining due by the agriculturist debtor to the creditor on the date of scaling down. Not only is interest in excess of the statutory rate wiped off under Madras Act IV of 1938 but also payments in partial discharge of the debt have to be taken into account in finally fixing the liability of the debtor to the creditor and passing an order scaling down the debt or amending the decree as the case may be. It is therefore incumbent upon the debtor who applies for the scaling down of a decree, to allege and prove any payments made in partial Satisfaction of the decree. Even an uncertified payment towards the decree can be pleaded and proved by the judgment-debtor on an application for scaling down and amendment of the decree. It is a claim which he might and ought to have made in the proceedings for scaling down the decree and if he omits to plead and prove such partial satisfaction of the decree, the matter will be deemed to have been heard and decided against him by the Court scaling down the decree. The plea of Res Judicata applies not only to points on which the Court was actually required by the parties to pronounce judgment but also to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time for adjudication. Sobhag Singh v. Ranjit Singh ; Vinayak v. Dattatrya Krishna Chandra v. Surendra Nath . The decree as amended must therefore be taken to be a judicial adjudication of the amount due by the debtor to the creditor on the date of the amendment and it is not open to the debtor to plead that credit should have been given to him for further or other amounts on the date of the scaling down and amendment of the decree. For the reasons, I am of the opinion that the decision of the Court below is erroneous and that the suit should be dismissed. In view of the fact that the 1st defendant is succeeding on a plea of Res Judicata and in view of the finding of fact arrived at by the Courts below that the payment of Rs. 250/- was omitted to be taken into consideration when the decree was scaled down, I direct that each party do bear his own costs through out. No leave. T. A. B. Appeal allowed.