MOIDIN BACHA ROWTHER Vs. ISCHIDAMBARAM PILLAI

JUDGEMENT

(1.) The appellants who are also the petitioners in the civil miscellaneous petitions, were indebted to the respondent under a promissory note of 1928. The respondent filed a suit and in February 1985 obtained an ex parte decree. He appealed against the decree seeking a charge in respect of the amount declared due. In that appeal the judgment-debtors were not served with notice although they were the sole respondents, the Court having apparently dispensed with the service of notice under the provisions of the proviso to Order 41, Rule 14, Civil P.C., read with Appellate Side Rules 12A(17). In our opinion when an appeal is filed and the only1 respondents to that appeal are persons who have allowed the proceedings in the trial Court to go on ex parte it is undesirable to apply the proviso to Rule 14 of Order 41, Civil P.C., without an attempt to serve at least one of those respondents. The appeal against the decree was, however, heard in the absence of the respondents thereto and it was dismissed; so that on the face of it, it would appear that the debtors suffered no harm by reason of the hearing of the appeal ex parte.

(2.) The matter was, however, complicated by the fact that the appeal resulted in a decree of the High Court dated 28 July 1939; whereas Madras Act 4 of 1938 giving a right to judgment-debtors Under Section 19 to apply for the scaling down of a decree, came into force on 22 March, 1938. The debtors took no action to secure the benefits of Act 4 of 1938 until in 1942 the decree-holder sought to execute the High Court's decree. Thereupon, the debtors, instead of moving the High Court, started proceedings in the trial Court Under Section 19 of Act 4 of 1938 to scale down the decree. The trial Judge held on 7 July 1943, that in view of the passing of the High Court's decree after Act 4 of 1938 came into force, he had no jurisdiction Under Section 19 to scale down the decree debt. Thereupon, the debtors filed the present appeal, C.M.A. No. 586 of 1943 and on 25 August 1943 they also filed an application in this Court, C.M.P. No. 3519 of 1943, to re- bear App. No. 199 of 1936 in order to give them an opportunity to urge in the re- hearing of the appeal their claim to relief under Act 4 of 1938. C.M.P. NO. 3518 of 1943 has also been filed at the same time to excuse the delay in filing C.M.P. No. 3519 of 1943. By way of supplementing their application for the re-hearing of the appeal against the decree, they subsequently filed C.M.P. NO. 3791 of 1943 which is a petition for scaling down the debt and C.M.P. NO. 3792 of 1943 which is a petition for stay of proceedings.

(3.) It was held by this Bench in Ramaswami Udayar V/s. Ramanathan ( 41) 28 A.I.R. 1941 Mad. 373 that Section 19 of Madras Act 4 of 1938 has no application to decrees passed after the Act came into force and that the same rule applied to decrees in appeal of which the affected party has had notice. Our recollection is that this observation regarding notice was inserted because we did not then wish to prejudge the case which might arise of an appeal dismissed Under Order 41, Rule 11, Civil P.C., without any opportunity being given to the debtors to appear and contest. There is a later judgment of one of us in Palani Mudaliar V/s. Athiappa Goundan ( 43) 30 A.I.R. 1943 Mad. 160 in which it was held that an application Under Section 19 to scale down the trial Court's decree passed before the commencement of Act 4 could not be entertained when there was an appellate decree passed after Act 4 came into force, even though the debtor seeking relief had no notice of the appeal. It seems to us now to be well-settled that when the trial Court's decree has been superseded by an appellate decree passed after Act 4 came into force, no application Under Section 19 will lie to the trial Court to scale down the trial Court's decree. It follows that C.M.A. No. 586 of 1943 has to be dismissed with costs.