MARINA AMMAYI Vs. MIRZA BAKHAR BEG SAHEB

JUDGEMENT

(1.) This revision petition arises out of an application under Section 19 of Madras Act IV of 1938 to scale down a preliminary decree for redemption passed by the Subordinate Judge of Rajahmundry.

(2.) The plaintiffs 2, 3, 4 and 6 were the petitioners in the Court below and are respondents here. They had executed a mortgage in 1914 and in a suit to redeem the mortgage the Court has passed the preliminary decree declaring that the amount due to the mortgagee calculated up to the 30 March, 1937, the date fixed for redemption, was Rs. 16,245-6-3. On the application of the respondents to scale down the decree, the Court below has found that they are agriculturists and that the amount already paid to the decree-holder (petitioner herein) was more than twice the principal sum payable by the respondents under the mortgage. The Court has therefore ordered under Section 19 read with Section 8 of the Act that full satisfaction of the decree as a whole be entered, holding that there could be no question of any partial amendment of the decree.

(3.) It is argued for the decree-holder that some of the other judgment-debtors who are purchasers of portions of the hypotheca are non-agriculturists and that the Court below ought not to have entered full satisfaction of the decree even as against them as they are not entitled to the benefits of the Act. The case reported in Ramier V/s. Srinivasiah (1940) 2 M.L.J. 872, is relied on in support of this contention. That decision no doubt recognised that a decree could be scaled down in favour of a judgment-debtor who was an agriculturist and left intact as against a non-agriculturist judgment-debtor and it was accordingly held that a puisne mortgagee who was an agriculturist and a party to the decree on a prior mortgage should be given an opportunity to redeem on payment of the decree amount as scaled down but that, on his failure to pay such amount within the time allowed, the decree-holder should be entitled to bring the whole of the mortgaged property including the puisne mortgagee's interest to sale. This procedure was indicated as appropriate in the circumstances of that case to give to the agriculturist judgment- debtor the full benefit of the relief to which the Act entitled him while safeguarding the right of the decree-holder as against the non-agriculturist mortgagor judgment-debtor. But that decision, it seems to us, is not applicable to the facts here. The respondents who are agriculturists brought the suit as mortgagors to redeem the mortgage impleading purchasers of portions of the hypotheca as co- plaintiffs and redemption has been decreed on payment of a certain sum which must now be deemed to have been paid. How then can redemption of the mortgage as a whole be denied to them? The Court below has found that the purchasers hold the moneys reserved with them for payment to the mortgagee as "mere custodians" for the mortgagors, and it may be that the respondents would be entitled to recover any portion of the purchase money which as a result of the scaling down of the decree, the purchasers will not have to pay to the mortgagee. See Ragunatha V/s. Sadagopa (1911) 21 M.L.J. 983 : I.L.R 36 Mad 348. In such circumstances the Court by entering satisfaction of the decree as a whole would only be allowing to the agriculturist mortgagors the fall benefits of the Act and not necessarily benefiting the non-agriculturist purchasers of portions of the hypotheca. It follows that the order of the Court below is correct though the view expressed by the learn-ed Judge that there could not be any partial amendment of a decree under the Act must be held to be erroneous in view of the decision in Rainier V/s. Srinivasiah (1940) 2 M.L.J. 872.