Case: Lakshmi Achi And Others Vs. T.V.V. Kailasa Thevar And Others

principal Act and in as much as the claim of defendant No. 1 under that provision had been negatived both by the District judge and the High Court on previous applications made by defendant No. 1, it was not open to him to make fresh claim under the same provision. Learned counsel has also submitted that the provisions of the amending Act, 1948 have no application in the present case and therefore no new right has been given to defendant No. 1.The crucial point for decision in connection with the arguments stated above is whether the decree in the present case is a decree passed before the commencement of the principal Act or after its commencement. It is indeed true that the District Judge passed a preliminary decree on May 15, 1937 and a final decree on January 28, 1938. These decrees, however, were superseded by the preliminary decree which the High Court passed on March 25, 1942. As this court pointed out in Ramaswami Ayyangars case (supra), a preliminary decree was drawn up in accordance with the judgment of the High Court by which the amount due from defendants 2 to 7 was scaled down while so far as defendant No. 1 was concerned, the decree of the trial Judge was affirmed subject to a slight modification regarding the rate of interest. The decree passed on March 25, 1942 was a preliminary decree in as much as it directed that in default of the payment of the amounts directed to be paid by the decree, the mortgaged properties would be sold. When no payments were made as directed by the preliminary decree of the High Court a final decree in terms of the same was passed by the District Judge himself on September 25, 1943. This was the decree which was put in execution. It is well settled that where an appeal has been preferred against a preliminary decree the time for applying for final decree runs from the date of appellate decree; see Jowad Hussain v. Gendan Singh [A.I.R. 1926 P.C. 93.]. In that decision the Privy Council quoted with approval the following observations of Banerjee, J. made in Gajadhar Singh v. Kishan Jiwan Lal [(1917) I.L.R. 39 All. 641.]."It seems to me that this rule - the rule regulating application for final decree in mortgage actions - contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the appellate Court which is the final decree in the cause." The principle that the appellate order is the operative order after the appeal is disposed of, which is the basis of the rule that the decree of the lower court merges in the decree of the appellate court, has been approved by this court in The Collector of Customs, Calcutta v. The East India Commercial Co. Ltd., [[1963] 2 S.C.R. 563.]. We are therefore of the view that the operative decree in the present case was the preliminary decree made by the High Court on March 25, 1942 which was made final on September 25, 1943. That being the position, the present is a case to which sub-s. (2) of s. 19 is attracted as also the provisions of s. 16 of the amending Act of 1948. Sub-s. (2) of s. 19 read with cl. (iii) of s. 16 entitles defendant No. 1 (respondent No. 1 herein) to claim the benefit of the principal Act, even though his earlier applications prior to the amending Act of 1948 were rejected. Sub-s. (2) of s. 19 read with s. 16 creates a new right in favour of respondent No. 1 and that right cannot be defeated on the principle of res judicata. The true scope and effect of s. 16 was considered by this court in Narayanan Chettiar v. Annamalai Chettiar [[1959] Supp. 1 S.C.R. 237.]. Referring to cl. (iii) of s. 16 this court said :"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 that the word 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 debt includes a decretal debt." In the case before us cl. (iii) of s. 16 clearly applies because the final decree which was passed on September 25, 1943 had not been satisfied in full before the commencement of the amending Act, 1948, that is, before January 25, 1949. Therefore, by reason of cl. (iii) s. 16 of the amending Act of 1948 respondent No. 1 was entitled to the benefit of sub-s. (2) of s. 19, and he cannot be deprived of that benefit because prior to the new right given to him by the amending Act of 1948 his applications for getting relief under the principle Act had been rejected. 9. We have, therefore, come to the conclusion that the view expressed by the High Court is the correct view and respondent No. 1 is entitled to the benefit of sub-s. (2) of s. 19 read with cl. (iii) of s. 16 of the amending Act of 1948, provided he establishes that he is an agriculturist within the meaning of the principal Act.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In the case before us cl. (iii) of s. 16 clearly applies because the final decree which was passed on September 25, 1943 had not been satisfied in full before the commencement of the amending Act, 1948, that is, before January 25, 1949. Therefore, by reason of cl. (iii) s. 16 of the amending Act of 1948 respondent No. 1 was entitled to the benefit of sub-s. (2) of s. 19, and he cannot be deprived of that benefit because prior to the new right given to him by the amending Act of 1948 his applications for getting relief under the principle Act had been rejectedWe have, therefore, come to the conclusion that the view expressed by the High Court is the correct view and respondent No. 1 is entitled to the benefit of sub-s. (2) of s. 19 read with cl. (iii) of s. 16 of the amending Act of 1948, provided he establishes that he is an agriculturist within the meaning of the principal Act.