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IN THE HIGH COURT OF MADRAS
Wadsworth, J.
Palanivel Gounden
Versus
Subbaroya Gounden
Decided On : 26.08.1940
Section 19 - Decree Scaling Down - The court allowed the petitioner's application to scale down the decree, rejecting the grounds for rejection based on the petitioner's status as a judgment-debtor and the existence of a charge under Section 55(4)(b) of the T.P. Act.
Fact of the Case:
The petitioner applied to scale down the decree under Section 19 of Act 4 of 1938, which was initially rejected by the court.
Finding of the Court:
The court found that the rejection based on the petitioner's status and the existence of a charge under Section 55(4)(b) of the T.P. Act was not valid, and allowed the petitioner's application with costs.
Issues: The issues revolved around the petitioner's status as a judgment-debtor and the existence of a charge under Section 55(4)(b) of the T.P. Act.
Ratio Decidendi: The court's decision was influenced by precedents in Perianna v. Sellappa and Doroikannu Odayar v. Veeraswami Padayachi, which clarified the petitioner's liability and the inapplicability of the charge under Section 55(4)(b) of the T.P. Act.
Final Decision: The civil revision petition was allowed with costs, and the application was remitted to the trial Court for disposal in the light of the judgment.
Wadsworth, J.
1. The petitioner applied under Section 19 of Act 4 of 1938, to scale down the decree and his application was rejected. The grounds for this rejection were two-fold. Firstly it was held that the petitioner could not be regarded as a judgment-debtor, he being impleaded as the vendee of the hypotheca in a mortgage suit. This decision cannot be upheld having regard to the decision of the bench in AIR1939Mad186 , Perianna v. Sellappa. The second ground on which the application was rejected is that the liability which the petitioner seeks to scale down is one in respect of which there is a charge under Section 55 (4)(b), T.P. Act, and that therefore by Section 10 (2)(ii) of Madras Act 4 of 1938, the debt cannot be scaled down. This contention must be negatived, having regard to our decision in o. n. p. No. 602 of 1939 Reported in AIR1941Mad59 , Doroikannu Odayar v. Veeraswami Padayachi . The liability to the decree-holder is not the same as the liability to the mortgagor in respect of which the vendors lien subsists. In the result therefore the civil revision petition must be allowed with costs and the application remitted to the trial Court for disposal in the light of this judgment.
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