KUMARASWAMI REDDIAR Vs. MUTHUGOPAL NAICKER (DECEASED)

JUDGEMENT

(1.) The first of these petitions arises out of an application under Section 23 of Madras Act IV of 1938, to set aside a sale. The second petition arises put of a connected application by the same judgment-debtors to amend the decree under Section 19 of the Act. The decree in question in both the petitions-was passed on a mortgage executed by the defendants 1 to 3. The applicants in the Court below were the legal representatives of the first defendant together with the second and third defendants. The eighth defendant in the mortgage suit was impleaded as puisne mortgagee of items 3 to 9 and 12 out of the 13 items in the hypotheca. He did not prove his mortgage, and no decree was passed in his favour, except that the judgment contained a direction that, in the sale, the items in which he was not interested should be sold first and the other items subsequently in the same sale. The ninth defendant was impleaded in the mortgage suit on the ground that she claimed a charge for maintenance.

(2.) On 17 April, 1936, a receiver was appointed, and he continued in possession right up to the time of the sale. A preliminary decree was passed on 28 August, 1936, for a sum of Rs. 6,869 and odd. There was no personal remedy. After a final decree had been passed, a sale was held on 18 October, 1937. At this sale, 12 out of the 13 items of property were sold, and realised a sum of Rs. 4,900 and odd. Item 6 which is the family house was not sold. Part-satisfaction was recorded, on 19 November, 1937. Act IV of 1938 came into force on 22nd March, 1938, and the present applications were filed in April, 1938. The only respondent impleaded was the plaintiff-decree-holder, who was also the purchaser at the sale. The only evidence as to the agriculturist status of the applicants appears to relate to the mortgage lands, and the objections seem to have been based on such irrelevant matters as the object for which the money was borrowed, the possession of the lands, etc. In the lower Court, it seems to have been assumed that, if the applicants had a saleable interest in agricultural lands at the time of the sale in October, 1937, they Were agriculturists entitled to the benefits of Secs.19 and 23 of the Act. The lower Court does not discuss the evidence on this part of the case at all, and it appears to me probable that the learned Judge failed to realise the importance of proof that the applicants were agriculturists at the time when they made their application.

(3.) Section 23 of the Act starts with reference to a sale on or after 1 October, 1937, of property in which an agriculturist had an interest, but it seems to me clearly to require in the later portion of the section that the applicant must be a judgment-debtor claiming to be an agriculturist entitled to the benefits of the Act, and that the Court has to be satisfied "that the applicant is an agriculturist entitled to the benefits of this Act." These words seem to me to contemplate a state of affairs in which the applicant has a saleable interest in agricultural land at the time when he makes his application. The same words are found in Section 19, "any judgment-debtor who is an agriculturist." In the definition of the term "agriculturist" in Section 3, we find that he is a person who has a saleable interest. Whatever time is contemplated in this definition, it cannot well be anterior to the commencement of the Act. Section 7 also contemplates the scaling down of debts payable by an agriculturist at the commencement of the Act.