The facts necessary for appreciating the contentions raised may be briefly narrated. To enforce a mortgage executed by the Akella family in favour of Muthangi Butchi Ramayya on 18th June, 1917, he filed O.S. No. 21 of 1930 on the file of the Court of the Subordinate Judge of Amalapuram. There was a preliminary decree against all the members of the joint family. On 12th April, 1932, a final decree was passed. Defendants 1, 2, 3 and the 13th defendants are brothers. Defendants 5 to 8 are the sons of the 1st defendant. Defendants 33 to 35 are the grandsons of the 1st defendant, being the sons of his son, the 4th defendant. Defendants 9 to 12 are the sons of the 2nd defendant. The other defendants are purchasers of some of the items of the property. First defendant was adjudicated insolvent in 1926. In execution of the decree in E.P. No. 403 of 1941, the decree-schedule properties were sold on the 17th and 18th of July, 1942, and were purchased by the plaintiffs, Muthangi. Ayyanna and Karra Suryanarayana on behalf of the defendants 30 and 31. Defendants 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, 33, 34 and 35, filed E.A. No. 734 of 1942 for setting aside the sale under section 47 and Order 21, rule 90, Civil Procedure Code, on various grounds. Defendants 2, 3, 5, 6, 13, 33, 34 and 35 filed S.A. No. 13 of 1946 for setting aside the sale under Order 34, rule 5, Civil Procedure Code, by depositing the amount alleged to be due from them under the provisions of the Madras Agriculturists’ Relief Act. The learned Subordinate Judge dismissed E.A. No. 743 of 1942 on the grounds that the sale was not vitiated by any of the irregularities alleged. He also dismissed E.A. No. 13 of 1946 on various grounds, the ground being that the entire decree amount was not deposited. The above two appeals were filed against the said orders.

Mr. Somasundaram, the learned Counsel for the appellants, contended that as the appellants, who are some of the mortgagors, deposited the amount payable by them under the Madras Agriculturists’ Relief Act, the entire mortgage decree is discharged on the principle that the mortgage is one and indivisible. In support of his argument he relied upon the decision in Kailasa Thevar v. Ramaswami Ayyangar1. In that case there was a mortgage decree. The decree was scaled down except as against the 1st defendant. When he filed an application for scaling down the decree, it was dismissed. The other defendants, against whom the decree was scaled down, paid certain amounts towards the decree. Then the 1st defendant deposited an amount equal to the difference between the amount of the scaled down decree against the other defendants and the payments made by them, and prayed that the deposit should be accepted and full satisfaction entered up and the entire hypotheca released from the mortgage. The learned Judges held that the 1st defendant would be entitled to the relief asked for on the principle of the unity and indivisibility of the mortgage. Mr. Justice Govindarajachari, who delivered the judgment, considered the earlier case-law on the subject and came to the aforesaid conclusion. If this judgment represents the correct law on the subject, the appellants would certainly be entitled to succeed: But Mr. T.M. Krishnaswami Ayyar, the learned counsel for the respondents, contended that the said judgment was not correct and that it required reconsideration. His arguments may be concisely stated as follows. The Madras Agriculturists’ Relief Act was enacted to provide for the relief of indebted agriculturists in the province of Madras, and, for that object, scaled down the liability of the debtors who are agriculturists. It was not intended to affect the rights of creditors against non-agriculturists. Debt is defined in the Act as a liability due from an agriculturist, and it will be scaled down under section 7 of the Agriculturists’ Relief Act notwithstanding any law to the contrary. It is therefore necessary to construe the sections i