Case: S. Pl. Narayanan Chettiar Vs. M. Ar. Annamalai Chettiar

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 cl. (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 S. 16 applies to decrees or orders which, though they had become final before 25th January 1949; are still in the stage of unfinished execution and at the stage at which satisfaction has not been fully received, and cl. (ii) applies to suits and proceedings which were instituted before 25th January 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 25th January 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, A I R 1953 Mad 188 at p. 189, 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 A I R 1953 Mad 421 (supra) 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 application under S. 19. It was held that he was not so entitled.In Jagannatham Chetty v. Parthasarathy Iyengar, A I R 1953 Mad 777 the question as to the meaning of the word proceedings in S. 16 was considered and it was observed that the word proceeding in S. l6 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 not arise in present case we refrain from making any final pronouncement.In Hemavathi v. Padmavathi, I L R (1954) Mad 891, it was held that the amending Act was retrospective so as even to apply to a debt which had already been scale 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 cl. (iii) of S. 16 of the Amending Act. In Lingappa Chettiar v. Chinnaswami Naidu, 1955-1 Mad L J 1 at p. 5 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 himself of the same, is disentitled to invoke the provisions of sub-s. (2) of S. 19 was 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 subsection as contemplated by cl. (iii) of S. 16 of Act XXIII of 1948 cannot be restricted or circumscribed by any other clause in that section."In 1955-l Mad L J 215 (supra) 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 not been executed or satisfied and so long 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 appellant was entitled to the benefit of S. 19 (2) of the Act, read with S. 16 cl. (ii) of the amending Act.12. 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.

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

Explanation:
0[ds]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 in 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.Sub-section (2) of S. 19 was one of the amendments which was inserted by the amending 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 three clauses of S.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 thethe 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.7. The three clauses of S. 16 are independent of each other and(1) refers to suits and proceedings instituted after the commencement of the amending Act, the relevant date being January25.Clause (i) 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 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. 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, 195l., which was after January 25, 1949.8. 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,do not think it necessary to consider the alternative argument of learned 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 cl.(ii) must mean decree or order for repayment of a debt. What then is the position before us ? As we see it, the position is this. Here is a suit which was instituted before the commencement of the amending Act, namely, JanuaryThe suit was pending on that date and no decree or order for repayment of the debt had been made by that date. The decree for repayment of the debt was made some two years after, on March 9, 1951 Therefore, the two conditions laid down for the first part of cl. (ii) are present and it clearly applies to the present case. The High Court recognised this, but thought that the appellant-debtor could ask for relief at only one stage, namely, when the appeal was pending and before a decree had been passed and if the appellant-debtor did not do so, he was barred from claiming any relief on the principle of res judicata. It is here, we think with great respect, that the High Court has gone wrong. The relief under S. 19 (2) in, terms, is a relief which can be claimed after a decree for repayment of the debt has been passed. It says that the provisions of sub- s.(1) shall apply to cases where, after the commencement of the Act, a court has passed a decree for the repayment of a debt payable at such commencement. The commencement of the Act referred to in S. 19 (2) is the commencement of the main Act, (Mad. IV of 1938). It is not disputed that the debt in the present case was payable at such commencement and the court had passed a decree for repayment of that debt after such commencement. Section 19 (2) in terms applied, and by reason of the provisions of(1) of S.19 which were also attracted to the present case, the appellant-debtor was entitled to the relief asked for notwithstanding anything contained in the Code of Civil Procedure, 1908. It is true that the doctrine of res judicata is a doctrine of wide import- and S. 11 of the Code of Civil Procedure is not exhaustive of it. There is high authority for the view that the principle of res judicata may apply apart from the limited provision of the Code of Civil Procedure, but the question before us, as we see it, is no so much the application of the principle of res judicata, as the proper construction of S. 19 of the Act and cl. (ii) of S. 16 of the amending Act. In our opinion, S. 19 in express terms entitles the appellant-debtor to claim a relief under the provisions of the Act when court has passed a decree, after the commencement of the Act, for the repayment of a debt payable at such commencement.are of the view that cl. (ii) of S. 16 describes the nature of suits or proceeding 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, 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.concur in the view expressed above that cl. (iii) of S. 16 applies to decrees or orders which, though they had become final before 25th January 1949; are still in the stage of unfinished execution and at the stage at which satisfaction has not been fully received, and cl. (ii) applies to suits and proceedings which were instituted before 25th January 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 25th JanuaryThat is a question which does not fall for decision in the present case and we express no opinion thereon.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.