M VARADARAJA PERUMAL PILLAI Vs. PALANIMUTHU GOUNDAN

JUDGEMENT

(1.) This revision petition arises out of an application by a judgment-debtor under Section 19 of Madras Act IV of 1938 and raises a question regarding the meaning of Section 10(2)(ii) of that Act.

(2.) The essential facts are that the judgment-debtor purchased lands under a sale deed of February 1923 whereby the purchase price was to be paid by the discharge of two debts and the execution of a promissory note for the balance. This promissory note was twice renewed and the renewed note of 1932 was assigned in 1936 to the plaintiff by endorsement. The plaintiff got a decree on the promissory note and when the judgment-debtor applied to scale down the decree, the plaintiff pleaded that the liability was one in respect of which a charge was provided under Section 55(iv)(b) of the Transfer of Property Act and that therefore the provisions of Section 8 of Madras Act IV of 1938 could not be applied.

(3.) For the purpose of deciding this case, we assume that the decision in Elumalai Chetty V/s. Balakrishna Mudaliar is correct, though there is some conflict of authorityon the question whether a mere endorsement of a promissory note which represents unpaid purchase money carries with it the security in the shape of the vendor's lien. Assuming that there was in fact no charge which the plaintiff- assignee could work out against his debtor, is the plaintiff entitled to rely on the provisions of Section 10(2)(ii)? This provision may be read in two ways. It may be read as safeguarding any liability for which a charge under Section 55(iv)(b) of the Transfer of Property Act subsists; or it may be read as protecting any liability of the category of liabilities in respect of which a charge is provided under Section 55 (iv)(b) of the Transfer of Property Act. We are of opinion that the latter interpretation is the correct interpretation and that the intention of the Legislature was to specify those classes of liabilities in respect of which the scaling down provisions of the Act? were not to operate and that the exclusion of liabilities of these categories was not to depend on the actual subsistence of the charge but on the question whether in the beginning the liability was one belonging to that category in respect of which the Transfer of Property Act provided a charge.