Full Judgment Text
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PETITIONER:
S. PL. NARAYANAN CHETTIAR
Vs.
RESPONDENT:
M. AR. ANNAMALAI CHETTIAR
DATE OF JUDGMENT:
31/10/1958
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
IMAM, SYED JAFFER
KAPUR, J.L.
CITATION:
1959 AIR 275 1959 SCR Supl. (1) 237
ACT:
Debt Relief-Agriculturist-Scaling down of decree debt-Enabl-
ing statute coming into force Pending appeal-Application
made after appellate decyee-Whether barred, by res
judicature-Madyas Agriculturists Relief Act, 1938 (IV of
1938), as amended, S. 1g(2) Madras Agriculturists Relief
(Amendment) Act (XXIII Of 1948), S. 16, CIS. (ii), (iii).
HEADNOTE:
In 1944 the respondent instituted a suit for the recovery of
money due under an award dated July 31, 1935, whereby the
appellant and his brother were directed to pay a certain
amount to the respondent. The suit was dismissed by the
trial Court
238
but on appeal the High Court passed a decree on March 9,
1951. During the pendency of the appeal in the High Court
the Madras Agriculturists Relief Act, 1938, was amended by
Act XXIII of 1948, which inter alia by adding sub-section
(2) to S. 19 of the main Act enabled decrees passed after
the commencement of the Act to be scaled down under the
provisions of the Act. By cl. (ii) to s. 16 of the amending
Act, which came into force on January 25, 1949, it was
provided that " that the amendments made by this Act shall
apply to......... all suits and proceedings instituted
before the commencement of the Act, in which no decree or
order has been passed before such commencement ". On October
5, 1951, the appellant made an application to the trial
court for scaling down the decremental debt under S. 19(2)
Of the Madras Agriculturists Relief Act, 1938, as amended,
but the application was dismissed on the ground that the
trial court had no jurisdiction to act under that sub-
section as the decree sought to be scaled down had been
passed by the High Court. The appellant preferred an appeal
to the High Court and also made a separate application for
scaling down the decretal debt under s. 19(2) Of the Act.
The High Court took the view that s. 19(2) was controlled by
s. 16 of the amending Act and that cl. (ii) of s. 16 was
applicable to the case, but that as the appellant whose
appeal was pending at the commencement of the amending Act
did not apply for scaling down before the decree was passed
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although he had the opportunity to do so, his application
subsequent to the decree was barred by the principle of Yes
judicature.
Held, that the High Court erred in its view that in order to
get relief under S. 19(2) Of the Act, read with cl. (ii) of
s. 16 of the amending Act, the appellant must have made the
application when the appeal was pending and before a decree
had been passed.
For the application of cl. (ii) of s. 16 of the amending
Act, the true test is whether the suit or proceeding was
instituted before January 25, 1949, and whether no decree or
order for repayment of a debt had been passed before that
date, and it is not necessary that the suit or proceeding
should be pending on the date of the application under s.
19(2) Of the Act. In cases covered by that clause a party
can ask for relief under the Act at two stages before a
decree for repayment of the debt bad been passed, and also
after such a decree had been passed, and since s. 19(2) of
the Act in express terms enables a debtor to claim a relief
under the provisions of the Act after a decree had been
passed, the appellant is entitled to the benefit of s. 19(2)
of the Act read with s. i6, cl. (ii), of the amending Act.
While cl. (ii) of s. i6 applies to suits and proceedings
which were instituted before January 25, 1949, but in which
no decree or order had been passed, or the decree or final
order passed had not become final, before that date, cl.
(iii) applies to decrees or orders, which, though they had
become final before January 25,
239
1949, were still in the state of unfinished execution and at
the stage at which satisfaction had not been fully received.
Venkataratnam v. Seshatnma, 1. L. R. [1952] Mad. 492,
approved.
The question whether cl. (ii) refers to decrees and orders
of a declaratory nature, which are not executable but which
have become final before January 25, 1949, left open.
The opinion expressed in jagannatham Chetty v. Parthasarathy
Iyengar, A.I.R. 1953 Mad. 777, that the word ’proceedings’
in s. i6 of the amending Act must relate to proceedings
instituted for repayment of a debt and not to execution
proceedings which are for enforcement of a decree or order,
doubted and the question left open.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 117 of 1955.
Appeal by special leave from the judgment and order dated
the 25th March, 1953, of the Madras High Court, in Civil
Misc. Petition No. 6577 of 1952.
R. Ganapathy Iyer, for the appellant.
Sardar Bahadur, for the respondent.
1958. October 31. The Judgment of the Court was ,delivered
by
S.K. DAS, J.-In this appeal, pursuant to special leave
against the judgment and order of the High Court of Madras,
the question for decision is whether the appellant who
claims to be an agriculturist debtor is entitled to apply
for scaling down of his decretal debt under the provisions
of the Madras Agriculturists’ Relief Act (Mad. IV of 1938),
hereinafter called the Act, as amended by the Madras
Agriculturists’ Relief (Amendment) Act (Mad. XXIII of
1948), hereinafter called the amending Act.
The facts which have led to this appeal are that a
partnership firm, briefly described as M.A.R. Firm, whose
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partners were Arunachalam Chetty, his two sisters and
Subramaniam Chetty, was carrying on the business of money
lending. On the death of Arunachalam Chetty on July 6,
1916, Subramaniam Chetty, one of the surviving partners,
took over the assets of the dissolved -partnership firm at a
valuation of Rs. 25,000 and carried on the business under
the name and style
240
of P.L. S. Firm of which the partners were Subramaniam
Chetty, Vellachi Achi, and his two daughters, and in 1919
Palaniappa Chetty, father of the appellant, joined the
partnership. The amount of Rs. 25,000 was credited in the
accounts of the new partnership. On April 19, 1919, the
accounts showed a balance of Rs. 16,369-12 as being due to
the share of the deceased Arunachalam Chetty which by the
year 1935 swelled up to a figure of Rs. 55,933-15.
Subramaniam Chetty died in 1924 and the business was carried
on after his death by his widow Lakshmi Achi and her
daughter and Palaniappa Chetty. In 1930 Palaniappa Chetty
died and his sons joined the business in his place.
Disputes arose between the partners in 1935 which were
referred to arbitration and under an award given on July 31,
1935, Arunachalam Chetty and his sister were directed to pay
to the estate of M.A.R. Rs. 34,958-11-6 and the defendants,
now appellant and his brother, a sum of Rs. 20,975-3 and
corresponding entries were made in the account books of
P.L.S. Firm. In 1944 the plaintiff, now respondent, as the
adopted son of Arunacbalam Chetty filed a suit for recovery
of the amount which the award had directed the defendants to
pay. The defendants were the two sons of Palaniappa Chetty.
They denied the adoption of the respondent to Arunachalam
Chetty and also pleaded the bar of limitation.
The trial Court held the adoption to be invalid and upheld
the plea of limitation. The plaintiff took an appeal to the
High Court which held the adoption to be valid and also held
the suit to be within limitation. It remitted the case to
the trial Court for determining certain issues and after the
findings were received, the suit was decreed on March 9,
1951, for a sum of Rs. 26,839-15-9. The appellant applied
to the High Court for leave to appeal to this Court and also
applied for stay. Leave was granted but stay was refused
as, no security was furnished under the rules, the High
Court later revoked the certificate granting leave.
During the pendency of the appeal in the High Court, the Act
of 1938 was amended by the amending Act by which new reliefs
were given to agriculturist,, debtors. On October 5, 1951,
the appellant made an
241
application to the Trial Court for scaling down the decretal
debt under s. 19 (2) of the Act which was added by the
amending Act. The trial Court held that the decree could be
scaled down under s. 19 (2) of the Act, but it had no
jurisdiction to grant that relief as, the decree sought to
be scaled down had been passed by the High Court. Against
this order the appellant took an appeal to the High Court on
July 4, 1952, and also made a separate application in the
High Court for scaling down the decretal debt under s. 19
(2) of the Act. The High Court dismissed the application on
March 25, 1953. The appellant - then applied for leave to
appeal under Art. 133 of the Constitution but this was
refused on October 6, 1953, and this Court granted special
leave on April 19, 1954.
The ground on which the High Court refused relief under s.
19 (2) of the Act was that "the retrospective operation of
s. 19 (2) was controlled by s. 16 of the Act XXIII of 1948 "
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and that cl. (ii) of s. 16 applied and as the appellant
whose appeal was pending at the commencement of the amending
Act did not apply for scaling down before the decree was
passed although he had the opportunity to do so, his
application subsequent to the decree was barred by the
principle of res Judicata. The provisions of s. 19 (2) of
the Act which gave the right to obtain relief of scaling
down notwithstanding the provisions of the Code of Civil
Procedure to the contrary were held inapplicable, because a.
19(2) of the Act was itself " limited by the provisions
of s. 16 of Act XXIII of 1948 ". The High Court observed
that although the appellant had filed an additional written
statement claiming relief under the Burma Debt Laws, no
prayer was made for any relief under the Act. The High
Court said :-
" A party who had an opportunity to raise a plea but did not
raise the Plea is precluded by principles of res judicata
from ’raising the plea over again at a subsequent stage.
But it is said that the principle of res judicata has no
application to the present case as section 19 (1) which is
incorporated by reference in section 19 (2) says that a
petitioner would be entitled to the relief given to him
under that section
244
order has been passed, or in which the decree or order has
not become final, before such commencement;
(iii) all suits and proceedings in which the decree or
order passed has not been executed or satisfied in ,full
before the commencement of this Act: Provided that no
creditor shall be required to refund any sum which has been
paid to or realised by him before the commencement of this
Act
Unfortunately, the language of s. 16 is not very clear and
lends itself to difficulties of interpretation. We agree
with the High Court that s. 16 of the amending Act controls
the amendments made by that Act in the sense that those
amendments apply to the suits and proceedings described in
the three clauses of s. 16. Sub-section (2) of s. 19 was
one of the amendments which was inserted by the ammending
Act and therefore the appellant-debtor must establish that
he is entitled to relief under sub s. (2) of s. 19, because
his case comes under one of the three clauses of s. 16. The
High Court held that cl. (ii) of s. 16 applied in the
present case; but the appellant-debtor could and should have
raised the plea for relief under the Act when the appeal was
pending in the High Court and as he did not do so, he was
barred from claiming relief under s. 19(2) on the principle
of res judicata. We do not think that this view is correct
and our reasons are the following.
The three clauses of s. 16 are independent of each other and
el. (i) refers to suits and proceedings instituted after the
commencement of the amending Act, the relevant date being
January 25, 1949. Clause (1) has no application in the
present case and need not be further considered. Clause
(iii), it seems clear to us, applies to suits and
proceedings in which the decree or order passed had become
final, but had not been executed or satisfied in full
-before January 25, 1949: this means that though a final
decree or order for repayment of the debt had been passed
before January 25, 1949, yet an agriculturist debtor can
claim relief under the Act provided the decree has not been
executed or satisfied in full before the aforesaid date. It
should be remembered in this connection
241
application to the Trial Court for scaling down the decretal
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debt under s. 19 (2) of the Act which was added by the
amending Act. The trial Court held that the decree could be
scaled down under s. 19 (2) of the Act, but it had no
jurisdiction to grant that relief as,, the decree sought to
be scaled down had been passed by the High Court. Against
this order the appellant took an appeal to the High Court on
July 4, 1952, and also made a separate application in the
High Court for scaling down the decretal debt under s. 19
(2) of the Act. The High Court dismissed the application on
March 25, 1953. The appellant then applied for leave to
appeal under Art. 133 of the Constitution but this was
refused on October 6, 1953, and this Court granted special
leave on April 19, 1954.
The ground on which the High Court refused relief under s.
19 (2) of the Act was that "the retrospective operation of
s. 19 (2) was controlled by s. 16 of the Act XXIII of 1948 "
and that cl. (ii) of s. 16 applied and as the appellant
whose appeal was pending at the commencement of the amending
Act did not apply for scaling down before the decree was
passed although he had the opportunity to do so, his
application subsequent to the decree was barred by the
principle of res judicata. The provisions of s. 19 (2) of
the Act which gave the right to obtain relief of scaling
down notwithstanding the provisions of the Code of Civil
Procedure to the contrary were held inapplicable, because s.
19 (2) of the Act was itself " limited by the provisions
of s. 16 of Act XXIII of 1948 ". The High Court observed
that although the appellant had filed an additional written
statement claiming relief under the Burma Debt Laws, no
prayer was made for any relief under the Act. The High
Court said :-
" A party who had an opportunity to raise a plea but did not
raise the Plea is precluded by principles of res judicata
from raising the plea over again at a subsequent stage. But
it is said that the principle of res judicata has no
application to the present case as section 19 (1) which is
incorporated by reference in section 19 (2) says that a
petitioner would be entitled to the relief given to him
under that section
244
,order has been passed, or in which the decree or order has
not become final, before such commencement;
(iii) all suits and proceedings in which the decree or
order passed has not been executed or satisfied in ,,full
before the commencement of this Act: Provided that no
creditor shall be required to refund any sum which has been
paid to or realised by him before the commencement of this
Act ".
Unfortunately, the language of s. 16 is not very clear and
lends itself to difficulties of interpretation. We agree
with the High Court that s. 16 of the amending Act controls
the amendments made by that Act in the sense that those
amendments apply to the suits and proceedings described in
the three clauses of s. 16. Sub-section (2) of s. 19 was
one of the amendments which was inserted by the ammending
Act and therefore the appellant-debtor must establish that
be is entitled to relief under sub-s. (2) of s. 19, because
his case comes under one of the three clauses of s. 16. The
High Court held that cl. (ii) of s. 16 applied in the
present case; but the appellant-debtor could and should have
raised the plea for relief under the Act when the appeal was
pending in the High Court and as he did not do so, he was
barred from claiming relief under s. 19(2) on the principle
of res judicata. We do not think that this view is correct
and our reasons are the following.
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The three clauses of s. 16 are independent of each other and
cl. (1) refers to suits and proceedings instituted after the
commencement of the amending Act, the relevant date being
January 25, 1949. Clause (1) has no application in the
present case and need not be further considered. Clause
(iii), it seems clear to us, applies to suits and
proceedings in which the decree or order passed had become
final, but had not been executed or satisfied in full before
January 25, 1949: this means that though a final decree or
order for repayment of the debt, had been passed before
January 25, 1949, yet an agriculturist debtor can claim
relief under the Act provided the decree has not been
executed or satisfied in full before the aforesaid date. It
should be remembered in this connection
245
that the word I debt’ in the Act has a very comprehensive
connotation. It means any liability in cash or kind,
whether secured or unsecured, due from an agriculturist,
whether payable under a decree or order of a civil or
revenue court or otherwise etc. It is, therefore, clear
that the word I debt’ includes a decretal debt. On the view
that cl. (iii) applies in those cases only where a final
decree or order for repayment of the debt had been made
before January 25, 1949, it has no application. in the
present case; because the decree for repayment of the debt
was passed on March 9, 1951 - which was after January 25,
1949.
We then go to el. (ii). This clause is in two parts and
talks of two different situations; one is when no decree or
order has been passed and the other is when the decree or
order passed has not become final. There is, however, a
common element, and the common element is that el. (ii)
refers to suits and proceedings instituted before January
25, 1949. Now, the argument which learned counsel for the
appellant has presented is this. He says that the common
element referred to above is satisfied in the present case,
because the suit was instituted long before January 25,
1949. He then says that no decree or order for repayment of
the debt having been passed before March 9, 1951, the first
situation envisaged by el. (ii) arose in the present case
and the appellant-debtor was entitled to avail himself of
all or any of the amendments made by the amending Act,
including the amendment made in s. 19 by the insertion of
sub-s. (2) thereof. In the alternative, he says that if,
the word ’decree or ’order’ means any decree or any order,
even then cl. (ii) applies, because the decree of dismissal
passed in the suit had not become final on January 25, 1949,
for an appeal was then pending. We do not think it
necessary to consider the alternative argument of learnd
counsel for the appellant; because we are of the view that
having regard to the other provisions of the Act, the words
" decree or order occurring in el. (ii) must mean decree or
order for repayment of a debt. What then is the position
before
248
passed, but did not do so. The legislature may not have
realised that this would be so; but as the amendments stand,
it is clear that in cases covered by cl. (ii) of s. 16 of
the amending Act, a party is entitled to ask for relief
under the Act at two stages, before a decree for repayment
of the debt has been passed and also after such a decree has
been passed. Different considerations will, however, arise
if a party asks for relief under the Act at the pre-decree
stage and that relief is refused on the ground that the Act
does not entitle him to any relief under it. If a party,
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even after such refusal, makes a second application, then
the principle laid down in Narayanan Chettiar v.
Rathinaswami Padayachi (1), will apply and the second
application must fail on the ground that it has already been
decided in his presence that he is not entitled to any
relief under the Act.
One other point has to be referred to in this connection.
On behalf of the respondent-creditor it has been pointed out
to as that on the date the application for relief under s.
19(2) was made in the High Court, no suit or proceeding was
actually pending, the High Court having passed a decree much
earlier, namely, on March 9, 1951. Asa matter of fact, the
application for relief under s. 19(2) for scaling down the
decree was made in the High Court sometime in 1952. We are
of the view that cl. (ii) of s. 16 describes the nature of
suits or proceedings in which the amendments shall apply and
the pendency of a suit or proceeding on a particular date
after January 25, 1949, is not the true test. The true test
is whether the suit or proceeding was instituted before
January 25, 1949, and whether in that suit or proceeding no
decree or order for repayment of a debt had been passed
before that date. That test having been fulfilled in the
present case, el. (ii) of s. 16 of the amending Act did not
stand in the way of the appellant when he asked for relief
under s. 19(2) of the Act.
We now turn to such authorities as have been placed before
us. The authorities are not all consistent, and the
language of cls. (ii) and (iii) of s. 16 of the amending
(1) A.I.R. 1953 Mad. 421.
245
that the word I debt’ in the Act has a very comprehensive
connotation. It means any liability in cash or kind,
whether secured or unsecured, due from an agriculturist,
whether payable under a decree or order of a civil or
revenue court or otherwise etc. It is, A, therefore, clear
that the word I debt’ includes a decretal debt. On the view
that cl. (iii) applies in those cases only where a final
decree or order for repayment of the debt had been made
before January 25, 1949, it has no application in the
present case; because the decree for repayment of the debt
was passed on March 9, 1951, which was after
January 25, 1949.
We then go to cl. (ii). This clause is in two parts and
talks of two different situations; one is when no decree or
order has been passed and the other is when the decree or
order passed has not become final. There is, however, a
common element, and the common element is that cl. (ii)
refers to suits and proceedings instituted before January
25, 1949. Now, the argument which learned counsel for the
appellant has presented is this. He says that the common
element referred to above is satisfied in the present case,
because the suit was instituted long before January 25,
1949. He then says that no decree or order for repayment of
the debt having been passed before March 9, 1951, the first
situation envisaged by cl. (ii) arose in the present case
and the appellant-debtor was entitled to avail himself of
all or any of the amendments made by the amending Act,
including the amendment made in s. 19 by the insertion of
sub-s. (2) thereof. In the alternative, he says that if the
word ’decree’ or ’order’ means any decree or any order, even
then cl. (ii) applies, because the decree of dismissal
passed in the suit had not become final on January 25, 1949,
for an appeal was then pending. We do not think it
necessary to consider the alternative argument of learned
counsel for the appellant; because we are of the view that
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having regard to the other provisions of the Act, the words
" decree or order occurring in cl. (ii) must I mean decree
or order for repayment of a debt. What then is the position
before
248
passed, but did not do So. The legislature ’may not have
realized that this would be so; but as the amendments stand,
it. is clear that in cases covered by cl. (ii) of a. 16 of
the amending Act, a party is entitled to ask ,,for relief
under the Act at two stages, before a decree for repayment
of the debt has been passed and also after such a decree has
been passed. Different considerations will, however, arise
if a party asks for relief under the Act at the pre-decree
stage and that relief is refused on the ground that the Act
does not entitle him to any relief under it. If a party,
even after such refusal, makes a second application, then
the principle laid down in Narayanan Chettiar v.
Rathinaswami Padayachi (1), *ill apply and the second
application must fail on the ground that it has already been
decided in his presence that he is not entitled to any
relief under the Act.
One other point has to be referred to in this connection.
On behalf of the respondent-creditor it has been pointed out
to. as that on the date the application for relief under s.
19(2) was made in the High Court, no suit or proceeding was
actually pending, the High Court having passed a decree much
earlier, namely, on March 9, 1951. As a matter of fact, the
application for relief under s. 19(2) for scaling down the
decree was made in the High Court some time in 1952. We are
of the view that el. (ii) of s. 16 describes the nature of
suits or proceedings in which the amendments shall apply and
the pendency of a suit or proceeding on a particular date
after January 25, 1949, is not the true test. The true test
is whether the suit or proceeding was instituted before
January 25, 1949, and whether in that ,suit or proceeding no
decree or order for repayment of a debt had been passed
before that date. That test having been fulfilled in tile
present case, cl. (ii) of s. 16 of the amending Act did not
stand in the way of the appellant when he asked for relief
under s. 19(2) of the Act.
We now turn to such authorities as have been placed before
us. The authorities are not all consistent, and the
language of cls. (ii) and (iii) of S. 16 of the amending
(1) A.I.R. 1953 Mad. 421.
249
Act has perhaps led to some of the difficulties of inter-
pretation referred to therein. The earliest decision
brought to our notice is the decision in Velagala
Sriramareddi and others v. Karri Sriramareddi (1). This is
a full bench decision of the Madras High Court. to which we
have already referred in an earlier part of this judgment.
The next decision is that of Venkataratnam v. Sesharma (2),
which is also a Full Bench decision of the Madras High
Court. It deals with the construction of clauses (ii) and
(iii) of s. 16 of the amending Act with particular reference
to the view expressed in certain earlier cases of the same
High Court with regard to cl. (iii) of s. 16. The view
expressed in the earlier cases, to which the learned Judges
who decided the case out of which the present appeal has
arisen were parties, was that el. (iii) of s. 16 had no
application to proceedings in which the decrees and orders
had become final before January 25, 1949. The Full Bench
did not accept that view as correct. Satyanarayana Rao, J.,
who delivered the judgment of the Court said:
,It cannot be doubted that the two clauses (ii) and (iii)
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are entirely independent and are intended to provide for
different situations.........
"The view taken by the learned Judges in the Civil
Miscellaneous Appeals, already referred to, was that, while
the two clauses are independent, clause (iii) has no
application to proceedings in which the decrees and orders
have become final before the commencement of the Act. It is
this view which is also pressed now before us by the learned
Advocate for the respondent. While we agree with the
learned Judges in holding that the two clauses are
independent, we are unable, with great respect, to accept
the view that clause (iii) applied only to cases in which
the decrees and orders have not become final. If the decree
or order has not become final before the commencement of
this Act, clause (iii), in our opinion, seems to be un-
necessary and as such the case would be covered by clause
(ii). Further, it would be difficult to imagine
(1) I.L R. [1042] Mad. 346.
32
(2) I.L.R. [1952] Mad. 402, 498. 499.
250
that a decree or order which has not become final can ,be
finally executed or can be finally satisfied. No doubt it
is true that, even when an appeal is pending, a decree may
be executed and satisfaction may be entered. But all that
is only subject to the result of the appeal. If the appeal
succeeds or the amount due by the defendant to the plaintiff
is increased by the Appellate Court, fresh execution has to
be started, the satisfaction must be reopened and the
execution must proceed. The Legislature, in our opinion,
when it enacted these two provisions, must have intended
that, even in the case of decrees or orders which have
become final, having regard_ to the provisions of the new
Act, relief should be had by the judgment-debtor so long as
the decree or order was not executed or was not satisfied in
full before the commencement of the Act. If, however, a
decree was executed in part and, before it was fully
satisfied, the debt was scaled down under the provisions of
the Act, as a result of which the creditor was found to have
received more than what he was entitled to, the proviso
enacts that, in such a situation, the creditor should not be
required to refund any sum which has been paid to or
realised by him before the commencement of this Act. The
question is asked, and legitimately, as to which are the
kinds of decrees or orders which have become final and which
are sought to be excluded by implication in clause (ii) of
section 16. It is of course not easy to grive an exhaustive
list of such decrees and orders. It may be that the
legislature contemplated that decrees and orders of a
declaratory nature, and which are not executable and which
have become final before the commencement of the Act, need
not be reopened. A reading of the two clauses together
would suggest that clause (iii) would apply exclusively to
executable decrees or orders which, though they have become
final before the commencement of the Act, are still in the
stage of unfinished execution and at the stage at which
satisfaction was not fully received. The view which we
take, in our opinion, reconciles both the clauses and does
not make any of the clauses unnecessary.
We concur in the view expressed above that cl. (iii) of
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s. 16 applies to decrees or orders which, though they had
become final before January 25, 1949, are still in the stage
of unfinished execution and at the stage at which
satisfaction has not been fully received, and cl. (ii)
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applies to suits and proceedings which were instituted
before January 25, 1949, but in which no decree or order had
been passed or the decree or order passed had not become
final before that date. We consider it unnecessary in the
present case to go into the further question whether cl.
(ii) refers to decrees and orders of a declaratory nature,
which are not executable but which have become final before
January 25, 1949. That is a question which does not fall
for decision in the present case and we express no opinion
thereon. In Kanakammal v. Muhammad Kathija Beevi (1) it was
observed:
" The mere fact that the judgment-debtor raised an objection
to the executability of the whole decree on the ground that
it has to be scaled down is no ground for scaling down the
decree and the court will not be justified in so scaling
down without a separate application. This is also another
ground for holding that the judgment-debtor is not barred
from filing the application to scale down the decree even
though he had not raised the question at an earlier stage of
the execution proceedings. We are therefore definitely of
opinion that an application under s. 19 of the Act is not
one which comes under s. 47, Civil Procedure Code, and
therefore the principle of res judicata in execution cannot
apply to the facts of the present case."
The decision in Narayanan Chettiar v. Rathinasami Padayachi
(2), related to a different point altogether, namely,
successive applications under s. 19 or s. 20 of the Act. In
that case the question was whether the judgment-debtor not
having filed an application under s. 19 within the
prescribed time from the date of the stay order under s. 20
passed on his prior application was precluded from again
filing another application under s. 20 followed by an appli-
cation under s. 19. It was held that he was not so
entitled. In Jagannatham Chetty v. Parthasarathy
(1) A.I.R. 1953 Mad. 188, 189.
(2) A.I.R. 1953 Mad. 421.
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Iyengar(1) the question as to the meaning of the word
proceedings’ in s. 16 ",as considered and it was observed
that the word I proceedings’ ins. 16 must relate to
proceedings instituted for repayment of a debt and not to
execution proceedings which are for enforcement of a decree
or order. We greatly doubt whether that is the correct view
to take, particularly when the expression ’debt’ includes a
decretal debt; but as the question does Dot arise in the
present case we refrain from making any final pronouncement.
In Hemavathi v. Padmavathi (2) it was held that the amending
Act was retrospective so as even to apply to a debt which
had already been scaled down once by the application of the
Act and even where the rights of the parties had been
finally adjudicated by decree or order of a court, provided
that the decree or order had not been executed or fully
satisfied. That was held to be the effect of el. (iii) of
s. 16 of the amending Act. In Lingappa Chettiar v.
Chinnaswami Naidu (3), the view taken by Subba Rao and
Somasundaram, JJ. (the same Judges who decided the present
case) in an earlier decision that a party who had an
opportunity of getting the beneficent provisions of the Act
applied to him before the amendment, but did not avail him-
self of the same, is disentitled to invoke the provisions of
sub-s. (2) of s. 19, ",as dissented from and Govinda Menon,
-J., who gave the judgment of the Court, said:
" We do not find any difficulty in holding that sub-s. (2)
of section 19 is applicable to cases like the present, and
the retrospective nature of that sub-section as contemplated
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by clause (iii) of section 16 of Act XXIII of 1948 cannot be
restricted or circumscribed by any other clause in that
section."
In T. N. Krishna Iyer v. Nallathambi Mudaliar and others (4)
Krishnaswami Nayudu, J., said that the object of s. 16 of
the amending Act was to render the application of the
amendments to a wide range of suits, both to suits
instituted before and after the commencement of the amending
Act and to such suits in which the decrees have not only
become final but have
(1) A.I.R. 1953 Mad. 777.
(3) (1955) i M.L.J. i, 5.
(2) I.L.R. [1954] Mad. 89i.
(4) (1955) i M.L.J. 215.
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not been executed or satisfied and so loin(, as something
remains to be done out of the decree, the Act could be made
applicable. It seems to us that both on authority and
principle, the correct view is that the appeallant was
entitled to the benefit of s. 19(2) of the Act,, read with
s. 16, cl. (ii) of the amending Act.
These are our reasons for holding that the view taken by the
High Court is not correct and the appeal must, therefore, be
allowed and the case sent back to the High Court for
consideration on merits in accordance with law. The
appellant will get his costs of this Court ; costs incurred
in the High Court before and hereafter will be dealt with by
the High Court at the time of the final decision.
There were two applications filed by the appellant debtor
for the relief which be claimed. One AN-as filed in the
trial court and the other in the High Court. The trial
court dismissed the application on the ground that the High
Court alone had jurisdiction to give such relief The
appellant preferred an appeal to the High Court and also
filed an application there. The question which is the
proper court to give relief to the appellant is a matter on
which we are making no pronouncement. That is a matter
which will be dealt with by the High Court.
Appeal allowed. Case remanded.
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