J19udgment

B. K. Mukherjea J.- This appeal is on behalf of the decree- holders in a mtge, suit & it is directed against a judgment & order of a D. B. of the Madras H. C. dated 5-1-1948, by which the learned Judges reversed, on appeal, an order of the Dist. J., East Tanjore, made in a proceeding under S. 47 & O. 21, R. 2, Civil P. C.

2. The material facts are not in controversy & may be briefly stated as follows. The applts. before us are the representatives of three original plts. who, as mtgees., instituted a suit (being O. S. NO. 30 of 1934) in the Ct. of the Dist. J. of East Tanjore, for enforcement, of a mtge., against the present resp. who was deft. 1 in the suit, & six other persons. The mtge. bond, upon which the suit was brought, was executed by deft. 1 for himself & his minor undivided brother, the deft. 2 & also as authorised agent on behalf of defts. 3 to 7 who were interested in a joint family business. The suit was contested by all the defts. except deft. 1. against whom it proceeded ex parte, & there was a preliminary decree passed on 15-5-1937, by which a sum of Rs. 1,08,098 was directed to be paid by deft. 1 & defts. 3 to 7, in default of which the pltfs. were declared entitled to apply for a final decree for sale of the mortgaged properties, & the suit was dismissed against deft. 2. Against this decree, two appea1s were taken to the Madras H. C. one by defts. 3 to 7-being Appl. No. 48 of 1938-Who contended that the mtge. was not binding on them or on their shares in the joint family property; & the other by the pltfs. -being Appl. No. 248 of 1938-Who challenged the propriety of the judgment of the trial Judge in so far as it dismissed their claim against deft. 2. During the pendency of these appeals, the Madras Agriculturists Relief Act (Iv [4] of 1938) came into force & applns. were made by defts. 2 to 7 to the H. C. praying that in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the Act. The deft. 1, who did not appear at any stage of the proceeding, did not make any such appln. The H. C. forwarded these applns. to the lower Ct. for enquiry into the matter & for return, with its finding on the question as to whether the appcts. were agriculturists, & if so,to what extent, the decretal dues should be scaled down. The Dist. J., after making enquiries, Submitted a finding that the appcts. were agriculturists & that the debt, if scaled down, would amount to Rs. 49,255 with interest thereupon at 6% per annum from1-10-1937 exclusive of costs. On receipt of this finding, the appeals were set down for final hearing & by their judgment dated 25-3-1942, the learned Judges of the H. C. accepted the finding of the Ct. below & held that defts. 2 to 7 were entitled to have the debts Scaled down; but as no appln. had been made on behalf of deft. 1, he was hold entitled to no relief under the Act. A decree was drawn up in accordance with the judgment. The amount due by defts. 2 to 7 was stated to be Rs. 49,255 with interest there on at 6% per annum; while, so far as deft.1 was concerned, the decree at the trial Judge was affirmed subject to a slight modification regarding the rate at interest. The deft.1 thereupon filed an appln, in the Court of the Dist, J., East Tanjore, claiming relief under the Agriculturists Relief Act alleging that he too was an agriculturists & hence entitled to the benefits of the Act. The appln was dismissed on 25-9-1943, on the ground that as the decree had already been passed by the H. C. definitely negativing his claim to any relief under the Agriculturists Relief Act, such appln. was not entertainable by the lower Ct. The next step taken by the deft, 1 was to file an appln, in the H. C. itself, praying for setting aside the ex Parte decree which excluded him from the benefits at Act IV [4] at 1938. This appln, was rejected by tbe H. C, on 13-12-1943,

3. As no payment was made in accordance with the preliminary decree