GADE SUBBAYYA Vs. RAJA KANDUKURI VENKATA HANUMANTHA BHUSHANARAO

JUDGEMENT

(1.) These petitions relate to the petitioner's claim to recover his costs, etc., in Privy Council Appeals Nos. 99 and 100 of 1933 in which a preliminary mortgage decree for Rs. 26,302-3-6 passed in favour of the petitioner was upheld by His Majesty in Council on the 26 September, 1936.

(2.) The petitioner applied in C.M.P. No. 949 of 1939 in the lower Court for a final decree for the balance of the amount due under the preliminary decree after giving credit for amounts paid from time to time by the respondent judgment- debtor, and the latter filed LA. No. 506 of 1938 to scale down the decree under the Madras Agriculturists Relief Act (hereinafter referred to as the Act). Both these applications were dealt with together and the learned Subordinate Judge finding that sums already paid by the respondent amounted to more than twice the principal amount of the debt after adjusting such payments towards all costs decreed to the petitioner including the costs now claimed directed full satisfaction of the decree to be recorded under Section 19 of the Act and dismissed the application for a final decree. From these orders the decree-holder has preferred these civil revision petitions and he has also filed C.M.P. No. 5982 of 1940 in this Court as an alternative remedy praying that the sum of ?138-13-11 awarded as costs by His Majesty in Council be paid over to him out of the deposit of Rs. 4,000 made by the respondent as security for costs of the Privy Council appeals. It may be mentioned here that the only dispute between the parties related to the adjustment of costs of the Privy Council appeals under the proviso to Section 19 of the Act.

(3.) Preliminary objections were raised on behalf of the respondent to the maintainability of the civil revision petitions. The dismissal of the application for a final decree for sale being appealable as a decree, it was contended that C.R.P. No. 1270 was incompetent. This objection must prevail as this Court has held in Subbalakshmi Ammal V/s. Ramanujam Chetty , and Mummadi Venkatiah v. Boganatham Venkata Subbiah (1921) 42 M.L.J. 51, that the dismissal of an application for a final decree in a suit for sale on a mortgage is appealable as a decree under Section 96 of the Civil P. C.. As regards C.R.P. 656 of 1941 it was urged that the refusal of the Court below to pass a final decree having now become final, the petitioner could not be allowed to contend that a balance was still due to him under the preliminary decree as affirmed by the Privy Council. There is no force in this objection. The Court below did not purport to dismiss the suit as, indeed, it could not do, having regard to the decision of the Privy Council in Lachmi Narain Marwari V/s. Balmakund Marwari (1924) 47 M.L.J. 441 : L.R. 51 I.A. 321 : I.L.R. 4 Pat. 61 (P.C.) and it would be open to the petitioner, if he succeeded in this civil revision petition, to ask for a final decree to be made for the balance claimed to be due under the preliminary decree, as the refusal to pass a final decree was based solely on the order made under Section 19 of the Act. Furthermore, it is still open to the respondent to apply for a decree in terms of Order 34, Rule 5(1) of the Civil P. C., and the suit must be considered to be pending till a final decree under either Sub-rule (1) or Sub-rule (3) of Order 34, Rule 5 is passed. We therefore overrule the preliminary objection.