SUBRAMANIAN CHETTIAR Vs. AKARAMACHANDRA REDDIAR

JUDGEMENT

(1.) These two connected appeals arise out of an order refusing to enter up satisfaction of a mortgage decree passed against the appellants and other defendants. The mortgage was granted on the 13 September, 1925. Defendants 1 to 4 were the mortgagors and 5 to 12 were subsequent purchasers of portions of the hypotheca. The 13 defendant is a purchaser of three items out of those purchased by the 9 defendant and he has sold one of these three items to the 14 defendant.

(2.) The suit (O.S. No. 20 of 1936) was brought to enforce the mortgage against all these defendants and a preliminary decree for Rs. 1,13,836-4-10 was passed on the 13th September, 1937. The Madras Agriculturists Relief Act, 1938, having been passed in March, 1938, the mortgagors applied under Section 19 to the Court which passed the decree for scaling down the debt in accordance with the provisions of the Act claiming to be agriculturists. Defendants 9 to 12 as well as defendants 5 to 8 also applied by separate petitions for similar relief. The applications of the mortgagors and of the defendants 9 to 12 were allowed and the amount was scaled down to Rs. 36,000. The application of defendants 5 to 8 was rejected on the ground that they were not agriculturists within the meaning of the Act. They appealed to this Court in A.S. No. 295 of 1939 which was heard with A.S. Nos. 23 and 24 of 1938 preferred against the preliminary decree on questions determined in the suit. These two appeals were dismissed and the preliminary decree was confirmed on 3 February, 1942. A.S. No. 295 of 1939 was allowed, the Court holding on the strength of a series of decisions, that the mortgagors being agriculturists even though the purchasers of portions of the hypotheca were non-agriculturists, the statutory reduction of the debt under the Act at the instance of the mortgagors enured to the benefit of such purchasers, not by virtue of any provisions of the Act, but under the general law. Vide Machiappa Chettiar V/s. Ramachandra Reddiar . The liability of defendants 5to 8 also was thus reduced to the scaled down amount, namely, Rs. 36,000 and the preliminary decree was amended accordingly. The 13 defendant who is the appellant before us in C.M.A. No. 410 of 1944 did not make any application of his own for relief under the Act, although he was an agriculturist because, as he says, he was under the impression that he would have the benefit of the scaling down ordered at the instance of his vendor, the 9 defendant. After the reduction of the decree amount as a result of these applications, the final decree was passed on the 18 March, 1939. The final decree gave effect to the scaling down of the amount only so far as defendants 1 to 4 and 9 to 12 Were concerned as the appeal by defendants 5 to 8 was disposed of only on 3 February, 1942. It is common ground that, consequent on the decision of this Court, the decree was further amended in respect of defendants 5 to 8 also. The 13 defendant and the 29th defendant who was brought on record as the legal representative of the 14 defendant subsequently filed an application (C.M.P. No. 4851 of 1942) in this Court in Appeal No. 24 of 1938 preferred against the preliminary decree and already disposed of as aforesaid, praying that this Court should " amend the decree herein by adding the words defendants 13 and 29 in paras. 1 and 2 of the decree of this Honourable Court, dated 3 February, 1942." The Court rejected that application on the ground that it was" much too late to give effect to defendant 13's contentions now." Subsequently, the decree-holder initiated execution proceedings and in the course of such execution proceedings the scaled down amount, namely, Rs. 36,000 with subsequent interest and incidental charges was deposited in Court at the instance of the defendants 1 to 4 and others who had obtained relief under the Act, and satisfaction of the decree was entered so far as they were concerned. The 13 defendant then filed E. A. No. 91 of 1944 out of which C.M.A. No. 410 of 1944 arises for entering up satisfaction of the decree even as against himself on the ground that the mortgage debt being indivisible and having been discharged by the payment of the scaled down amount by the mortgagors, the whole debt was wiped out and the property purchased by him became automatically freed from the encumbrance. The 9 defendant applied in E.A. No. 104 of 1944 for a similar relief pointing out that in his sale to the 13 defendant there was an indemnity clause under which he was liable to make good to his vendee any loss which the latter might sustain by reason of the decree-holder enforcing his claim against the 13 defendant. The 9 defendant therefore prayed that the entire decree should be entered as satisfied by the payment into Court of the decree amount as scaled down.

(3.) The Subordinate Judge while recognising the principle laid down by the decisions of this Court in Arunachalam V/s. Seetharam (1941) 1 M.L.J. 561 : I.L.R. 1941 Mad. 930, Marina Ammayi V/s. Mirza Bakhar Beg Saheb and Satyanarayanamurthi V/s. Sathiraju , namely, that when an agriculturist-mortgagor obtains the benefit of the Act and pays the amount of the debt as scaled down, the entire mortgage debt is discharged against all persons interested in the security even though such persons may not be agriculturists entitled to claim relief in their own right under the Act, was of opinion that the terms of the preliminary and final decrees as amended as well as the order of this Court rejecting the C.M.P. No. 4851 of 1942 precluded the 13 defendant from claiming that the decree was satisfied by the payment into Court of the reduced amount by the other defendants. Mr. Muthukrishna Aiyar, learned counsel for the 13 defendant, appellant in C. M. A. No. 410 of 1944, contests this view claiming that there is nothing in the decrees to preclude the application of the principle of the decisions referred to above in favour of his client at this stage when the decree amount as scaled down has been paid into Court, and that the order of this Court in C. M. P. No. 4851 of 1942 cannot have the effect of denying to the appellant the relief which he now seeks on the basis of such payment in the execution proceedings. We are inclined to agree that, so far as the order of this Court in C. M. P. No. 4851 of 1942 is concerned, it cannot have the effect of depriving the appellant of the benefit of the reduction of the decree debt effected at the instance of the mortgagors if the appellant is otherwise entitled under the law to such benefit, for all that this Court refused to allow was the prayer of the appellant to have the decree in Appeal No. 24 of 1938, expressly amended so as to give effect to the principle of the decisions referred to above even as regards his own liability under the decree. From the rejection of that prayer as having come too late, it cannot follow that the appellant cannot claim the benefit of the scaling down in other appropriate proceedings if he is entitled to such benefit under the law.