Case: V. Ramaswami Ayyangar And Others Vs. T.N.V. Kailasa Thevar

whose appln. for relief under S.19, Madras Agriculturists Relief Act, was allowed, does not make any difference in principle. The puisne mtgee. was made a party deft. in the suit instituted by the first mtgee. to recover his dues and as the puisne mtgee. was liable to pay the debt due to the first mtgee., he was held to be a debtor and hence entitled to claim the benefit of S. 19, Agriculturists Relief. Act. It may be mentioned here that S.14, Madras Agriculturists Relief Act, which provides for separation of a debt incurred by a Hindu family, some members of which are agriculturists while other are not, affords a clear indication that the splitting up of a debt in such circumstances is quite in accordance with the scheme of the Act.11. The catena of cases upon which the learned Judges of the H.C. relied in support of their decision seem to proceed on a different principle altogether and whether that principle is right or wrong, it has, in our opinion, no application to a case like the present. In this class of cases, the mtgors. were agriculturists and hence entitled to have their debts scaled down under the Agriculturists Relief Act, but there were purchasers of the mortgaged property who were not agriculturists, and the question arose whether a purchaser could get the benefit of the debt scaled down in favour of the original debtors. This question was answered in the affirmative. The reason for taking this view was thus given by the learned Judges inArunachalam Pillai v. Seetharam Naidu,. 1941 -1 M.L. J. 561 : (A.I.R. (28) 1941 Mad. 584) where the purchase of the equity of redemption was at on execution sale:When resp. 12 purchased the properties in court auction, he took them subject to the burden of the applt.s mtge. and if the burden is by reason of the provisions of S. 8 referred to above reduced without payment, the purchase proves to that extent an advantageous one, and there is nothing in the Act to deprive him of the fruits of his lucky purchase even though he is not an agriculturist. He gets the benefit of the scaling down not because the provisions of the Act apply to him for obviously they do not, but because such benefit is a necessary incident of his purchase under the general law and the Act does not deprive him of it."12. A somewhat different reason was assigned in Satyanarayanamurthi v. Sathiraju,1942-1 M. L. J. 506 : (A. I. R. (29) 1942 Mad. 525) which however was a case where a portion of the equity of redemption was transferred to a purchaser by a private sale. It was held that the Ct. by allowing the mtgor, to redeem the mtge. sale was not conferring on the purchaser, a non-agriculturist, the benefit of the Act, as he would have to refund to his vendor the purchase money reserved with him which as a result of the scaling down he would not have to pay to the mtgee. In both these cases, the question was raised in the proceeding for scaling down of the decree under the provisions of the Agriculturists Relief Act itself and not at the execution stage. There is however the case of Subramanian v. Ramchandra,1946-2 M. L. J. 429 : (A. I. R. (34) 1947 Mad. 255) where the question arose in course of execution proceedings and a purchaser of a portion of the equity of redemption was held to be entitled to the benefit of the scaled down decree in favour of the mtgors., although his own appln. for relief under the Act was refused. It is not necessary for purposes of this case to express any opinion as to the correctness or otherwise of these decisions. It is enough to say that the ratio decidendiin all these cases is not applicable to the case before us. In the present case, there is no purchaser of the mortgaged property and consequently there is no question of the purchaser, who is not an agriculturist himself, being entitled to the benefit of a decree which has been scaled down in favour of the agriculturist mtgor. Here the judgment-debtors are the mtgors. themselves and according to the plain provisions of the Agriculturists Relief Act there could not be any objection to a decree for reduced amount being passed against an agriculturist debtor, while the same relief is not given to his co-debtors who do not fulfil that description.13. Some exception could undoubtedly be taken to the form and wording of the decree that has been passed in the present case. The decree, in our opinion, should not only have stated the amount payable by deft. 1 and that by defts, 2 to 7 separately but should have expressly directed that on payment of the amount directed to be paid by defts. 2 to 7 their interest alone in the mortgaged property would not be liable to be sold. The further direction should have been that in case they did not pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mtge. debt for which deft, was made liable. It is true that the decree contains no such clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implication. The subsequent agreement between the parties arrived at in course of the execution proceedings by which the decree-holders agreed to release the interest of deft. 2 and that of defts. 3 to 7 separately on payment of certain specified amounts by them proceed clearly on the assumption that the mtge. debt and the security has been split up, and in our opinion it is not possible for deft.1 to contend that the mtge. debt remained indivisible. Our conclusion is that the view taken by the Dist.,J. was right and should not have been disturbed.

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

Explanation:
1[ds]7. It seems to us that the H. C.s approach to the case has not been a proper one and the conclusion it has reached cannot be supported in law.8. The learned Judges appear to have overlooked the fact that they were sitting only as an executing Ct. and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.The general law undoubtedly is that a mtge. decree is one and indivisible and. exceptions to this rule are admitted in special circumstances where the integrity of the mtge. has been disrupted at the instance of the mtgee. himself e. g., when there is severance of the interests of the mtgors. with the consent of the mtgee. or a portion of the equity of redemption is vested in the latter. It is to be noted, however, that the Madras Agriculturists Relief Act is a special statute which aims at giving relief not to debtors in general but only to a specified class of debtors, viz., those who are agriculturists as defined in the Act. To this extent it trenches upon the general law and S. 7 of the Act expressly providesany law, custom, contract or decree of Ct. to the contrary, all debts payable by an agriculturist at the commencement of this Act shall be scaled down in accordance with the provisions of thisin case of a mtge. debt when the loan has been advanced to more than one person, if one of the debtors happens to be an agriculturist while others are not, the agriculturist debtor would certainly be entitled to have his debts scaled down under the provisions of the Act in spite of the provision of general law which prevents a mtgor. from denying the liability of the interest which he owns in the mortgaged property to satisfy the entire mtge. debt. There is, therefore, nothing wrong in law in scaling down a mtge. decree in favour of one of the judgment-debtors, while as regards others the decree is kept intact.Some exception could undoubtedly be taken to the form and wording of the decree that has been passed in the present case. The decree, in our opinion, should not only have stated the amount payable by deft. 1 and that by defts, 2 to 7 separately but should have expressly directed that on payment of the amount directed to be paid by defts. 2 to 7 their interest alone in the mortgaged property would not be liable to be sold. The further direction should have been that in case they did not pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mtge. debt for which deft, was made liable. It is true that the decree contains no such clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implication. The subsequent agreement between the parties arrived at in course of the execution proceedings by which the decree-holders agreed to release the interest of deft. 2 and that of defts. 3 to 7 separately on payment of certain specified amounts by them proceed clearly on the assumption that the mtge. debt and the security has been split up, and in our opinion it is not possible for deft.1 to contend that the mtge. debt remained indivisible. Our conclusion is that the view taken by the Dist.,J. was right and should not have been disturbed.