Finality of direction given.

On 4th December, 1922, four brothers executed Exhibit A-1, a deed of mortgage for Rs. 3,000 in favour of one Govinda Reddi. The consideration for it according to the recitals in the document, was thus made up-(a) Rs. 350 being the balance due on an earlier mortgage executed on 25th November, 1907, by the father of the mortgagors in favour of Govinda Reddi; (b) Rs. 382 being the balance due on a mortgage executed by the father of the mortgagors in favour of one Doraisami Pillai, of which Govinda Reddi had taken an assignment; (c) Rs. 404 due on a promissory note executed by the father and mother of the mortgagors in favour of Govinda Reddi ; and (d) Rs. 1,955 being the balance due on a promissory note executed by one Thiruvengada Mudaliar, a brother of the mortgagors and their father in favour of Govinda Reddi on 31st July, 1919. The document also contained a recital making it plain that the brothers had divided among themselves on 1st December, 1922, for it says

"The kurchit for the partition effected by us on 1st December, 1922 and the cancelled document and promissory notes aforesaid have been delivered to you as security."

Though the document recited that the liability was joint, the parties proceeded on the footing that each of the brothers was liable to pay one-fourth of the debt. Two of the brothers, Kannappa Mudaliar and Ramanatha Mudaliar, paid their fractions of the debt in full and appropriate endorsements were made on the mortgage bond-vide Exhibits A-3 and A-4. The former endorsement ends thus: " The amount due by Kannappa Mudaliar under this bond has become zero." A-4 is in the following terms: " On 15th August, 1932, ¼th of the entire balance under this bond, namely Rs. 1,568 (Rupees one thousand five hundred and sixty eight only) by Ramanatha Mudaliar". Govinda Reddi, the mortgagee, died, and on 31st October, 1946, his heirs, three in number, filed O.S. No. 520 of 1946 on the file of the District Munsif, Chingleput, to recover the balance due under the mortgage.

There were seven defendants in the suit. The first defendant was the second of the four mortgagors as recited in Exhibit A-1. Defendants 3 to 5 are his sons. The second defendant was the fourth of the mortgagors. The sixth defendant is his son. The seventh defendant is an alienee from the second defendant.

The defendants contended that they were entitled to have the debt scaled down in accordance with the provisions of Act IV of 1938. On this point the District Munsif observed:

"Believing P.W.1 and relying on the recitals in Exhibit A-1, I find that there was a partition between the mortgagors and their brother Thiruvenkata Mudali about a few days prior to Exhibit A-1 and that the mortgagors executed Exhibit A-1 to discharge the debts allotted to them in the partition."

The District Munsif further observed:

"But it is clear from what I have stated above that there is no scope for the defendants to invoke Explanation to section 8 of Madras Act IV of 1938 and to treat the suit debt as a renewal of the prior debts mentioned in Exhibit A-1 ".

On this basis the suit was decreed with costs. The defendants appealed to the District Judge, Chingleput, in A.S. No. 15 of 1949. During the pendency of that appeal, i.e., to say on 12th January, 1949, Madras Act XXIII of 1949 came into force and on 1st August, 1949, the defendants filed Application No. 286 of 1949 praying that the benefits of that Act might be accorded to them and the decree of the lower Court modified accordingly. On 16th November, 1949, the learned District Judge pronounced judgment holding that Act XXIII of 1949 was applicable to the case and in view of that directed:

"In the result, both the appeal and the I.A. are allowed and the decree and judgment of the lower Court are set aside and both matters are remitted for fresh disposal according to law."

Against the order of remand the plaintiffs appealed to this Court in C.M.A. No. 214 of 1951.

During the pendency of this appeal Madras Act