Judgement

Consolidated Appeals (No. 8 of 1946), by special leave, from two orders of the High Court (January 27, 1942), the first setting aside in appeal an order of the Subordinate Judge of Ramnad at Madura (July 25, 1938), and the second setting aside in revision an order of the same Subordinate Judge (February 9, 1939)-

The substantial question for decision in these appeals was whether the respondent was an agriculturist within the meaning of the Madras Agriculturists Relief Act (Act IV of 1938), hereinafter referred to as the Act," but the appellant took a preliminary point that, assuming the respondent to be an agriculturist within the meaning of the Act, the orders of the High Court which were under appeal were incompetent and that this appeal should succeed on that ground.

The following facts relevant to the determination of that issue are taken from the judgment of the Judicial Committee. On September, 15, 1925, a final decree was passed in a mortgage suit, which was original suit No. 5 of 1921 on the file of the Subordinate Judge of Ramnad at Madura, in favour of the appellants or their predecessors in title against the predecessor in title of the respondent. (For convenience, the parties interested from time to time in the mortgage decree will be referred to as the decree-holders and the person interested in the equity of redemption as the judgment-debtor.”) Execution proceeding No. 79 of 1933 was taken out to enforce the final decree and certain of the mortgage properties were advertised for sale, but before a sale had been effected the Act was passed in March, 1938. On July 8, 1938, the judgment-debtor made execution application No. 237 of 1938 to the said Subordinate Judge, which was intituled E.A. No. 237 of 1938 in E.P. No. 79 of 1933 in O.S. No. 5 of 1921, and was expressed to be made under ss. 20, 19 and 8 of the Act, and ss. 47 and 151 of the Code of Civil Procedure. The relief prayed was that the execution proceedings in E.P. No. 79 of 1933 and the auction sale then pending be stayed until the disposal of the question of the extent of liability of the petitioner for the debt under s. 19 of the Act, and a declaration that the debt was wholly discharged under s. 8 of the Act. To appreciate the nature of that relief it was necessary to notice that under s. 8 of the Act the debts of an agriculturist could be scaled down. Under s. 19 it was provided, so far as material for the present purpose, that where a court had passed a decree for the repayment of a debt it should, on the application of any judgment-debtor who was an agriculturist, apply the provisions of the Act to such decree and should, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly, or enter satisfaction as the case might be. Section 20 provided that every court executing a decree passed against a person entitled to the benefits of the Act should, on application, stay the proceedings until the court which passed the decree had passed orders on an application made, or to be made, under s. 19, but a proviso to the section enacted that where within sixty days after an application for stay had been granted the judgment-debtor did not apply to the court which passed the decree for relief under s. 19, the decree should be executed as it stood.

On July 25, 1938, execution application No. 237 of 1938 came before the Subordinate Judge, who dismissed it summarily on the ground that the judgment-debtor was not an agriculturist. From that order an appeal was brought to the High Court of Madras, and that court directed the learned Subordinate Judge to submit a finding whether the judgment-debtor was an agriculturist and, if so, to what relief he was entitled under the Act. On the matter coming again before the Subordinate Judge on remand he heard evidence and delivered a detailed judgment on February 9, 1939. He found that the judgment-debtor was not an agriculturist within the meaning of the Act and was not entit