SWAYAMPRABHAI AMMAL Vs. DMUTHUKRISHNA PADAYACHI

JUDGEMENT

(1.) This civil revision petition raises the question whether Rule 2 of the rules framed under G.O. No. 2634 (Development), dated 27 October, 1939, in exercise of the powers under Section 28 (1) and Section 28 (2) (b) and (c) of Madras Act IV of 1938 is ultra vires. The rule in question prescribes a procedure whereby when any debt other than a decree debt is due by an alleged agriculturist, either the debtor or the creditor may apply to the Court for a declaration as to the amount of the debt and it is provided that no such application shall be maintainable if any suit for the recovery of the debt be pending and further that if while an application is pending a suit is filed for the debt, the application shall be dismissed. R. 9 of the same rules gives a right of appeal and second appeal from any declaration under these rules.

(2.) We are concerned in the present case with an application by the son of a mortgagor for a declaration that the mortgage debt is discharged by reason of previous payments, applying the principles laid down in the Act. The lower Court dealt with the contention that the rules under which the application was made are ultra vires, by a preliminary finding against which the present revision is preferred. The respondent does not object to the decision of this question at this stage, though ordinarily this Court will not entertain a revision against a mere finding, unless there are special circumstances rendering it desirable. It is, conceded on both sides that it is most desirable to get an authoritative ruling on this point not only for the decision of the particular case, but for the guidance,of the lower Courts in other similar cases which are likely to occur.

(3.) Act IV of 1938, is intended to provide for the relief of indebted agriculturists, and in Section 7, the basic principle is laid down that notwithstanding any law, custom, contract or decree of Court to the contrary all debts payable by an agriculturist at the commencement of the Act shall be scaled down in accordance with its provisions and that no sum in excess of the amount so scaled down shall be recoverable from the debtor. Section 18 indicates clearly that it is the duty of the creditor after this Act came into force or even after the bill came under the discussion of the Legislature, to calculate his claim in accordance with the provisions of the Act on pain of being mulcted in costs. It is, however, in many cases a matter of considerable difficulty for either the creditor or the debtor to discover with any certainty what will be the effect of applying the provisions of the Act to a particular contract; and this was more especially so at the time when the present rules were promulgated which was before a long series of reported decisions had cleared many doubtful questions. It cannot be denied that in October, 1939, many creditors must have found it extremely difficult even with the help of competent legal advice to decide what was the amount which they could justly claim, having regard to the provisions of this Act.