VENKATAMMAL Vs. KVRAMASWAMI AIYAR

JUDGEMENT

(1.) This petition is preferred by the fourth defendant in a mortgage suit, who filed an application under Section 19 of the Madras Agriculturists Relief Act to scale down the decree. The application was unsuccessful to the extent of Rs. 2,500 which the learned Subordinate Judge held to be protected by the provisions of Section 10 (2)(ii) of the Act and it is this decision which the petitioner seeks to revise. The suit was based on a mortgage dated 13 December, 1923, executed by defendants 1 and 2 in favour of the plaintiff. This mortgage is alleged to be a renewal of an earlier mortgage dated 16 August, 1917, executed in favour of the same creditor by Subbaraya Goundar, who is said to have been the husband of the first defendant and the father of the second defendant. After the execution of the mortgage of 1923, the mortgagors on "27thDecember, 1933, sold the hypotheca to the petitioner (fourth defendant) under a sale deed in which she specifically undertook to discharge the mortgage by payment of Rs. 2,500 out of the purchase price. She did not pay and the mortgagee filed a suit which resulted in a compromise decree, by the terms of which defendants 2 and 4 were enabled to satisfy the decree by paying Rs. 1,500 by 24 August, 1935 and Rs. 2,050 by 16 July, 1936, but in default of such payments the compromise decree, was to be a final decree for the full plaint claim (Rs. 4,348-8-d) with interest and costs. This default clause became operative, for the only payments made were Rs. 500 on Ist March, 1936; Rs. 1,000 on, 13 July, 1936; and Rs. 1,000 on 5 January, 1937.

(2.) The decision of the learned Subordinate Judge that the decree is protected to the extent of Rs. 2,500 under Section 10 (2)(ii) cannot be upheld in view of our decision in C.R.P. No. 602 of 1939., The liability which the petitioner seeks to cale down is not the liability to her vendors, in respect of which the charge is provided, but the liability to the mortgagee.

(3.) The plaintiff-respondent has, however, sought to resist the scaling down on the basis that the decree is a compromise decree under which for the first time a direct liability is placed upon the purchaser. We are unable to see how the fact that the decree is on a compromise can affect the position of the petitioner having regard to the facts of the case. We have held in C.R.P. No. 2010 of 1939 that when it can be shown that the liability tinder the compromise is a renewal of a pre-existing liability to the same creditor, the debt must be scaled down under Section 8 (if this section applies) on the basis of the principal amount originally advanced together with the amount of any subsequent advances. There is no difficulty on the present facts in holding that the whole of the liability under the compromise was nothing else than a renewal of the previous mortgage liability. Provided that this debt was the debt of an agriculturist, the liability is one which must be deemed to be a liability of the purchaser which he, being an agriculturist, can seek to scale down as against the mortgagee. (Vide Perianna V/s. Sellappa .)