Maintainability of the revision filed against order of Lower Court.

1. The petitioner herein is a judgment-debtor in O.S. No. 21 of 1964 on the file of the Sub Court, Padmanabhapuram, which was one on a hypothecation bond. She filed an application, E.A. No. 86 of 1977, under S. 20 of the Tamil Nadu Agriculturists Relief Act, Act 4 of 1938, hereinafter referred to as the Act as amended by Act 8 of 1973 for stay to enable her to apply for scaling down the preliminary decree, dated 21st September, 1965 passed in the said suit. She also filed later, on 22nd June, 1977 an application under S. 19 for scaling down the decree. However, before the application under S. 19 could be numbered the application under S. 20, E.A. No. 86 of 1977, was disposed of by the Court below on 8th July, 1977. In the order passed therein, the Court held that the petitioner judgment-debtor is not a person entitled to the benefits of the said Act, and therefore, the application under S. 20 cannot be maintained. Based on the said order, the application under S. 19 was rejected by the Court on 18th August, 1977 without even numbering the same. The petitioner did not challenge the said order passed on the application under S. 19. However, she had challenged in C.R.P. No. 2277 of 1977, the order, dated 8th July, 1977 passed by the lower court in her application under S. 20.

2. The petitioner later filed another application under S. 19 and required the lower Court to give a decision on merits. The lower Court rejected the application without numbering on the ground that the order passed on 10th August, 1977 in the earlier application under S. 19 had become final and therefore, the second application cannot be entertained. Against the said order, dated 1st December, 1977 C.R.P. No, 736 of 1978 has been filed.

3. It is not in dispute that the earlier order, dated 10th August, 1977, passed by the lower Court had become final, the same not having been challenged in revision before this Court. The learned counsel for the petitioner would urge that the petitioner could not take that order in revision as it was made in an unnumbered application. I do not see why an order of the lower court passed in an unnumbered application cannot be taken in revision before this Court. Any order of the lower Court could be taken to this court in revision, The learned counsel would then say that the earlier rejection was not on merits. I cannot agree. The rejection was on the basis of its considered decision rendered in I.A. No. 86 of 1977 and therefore, the rejection order, dated 10th August, 1977 should be taken to be a decision on merits. In view of the fact that the earlier order, dated 10th August, 1977 has been allowed to become final, that will clearly operate as res judicata for the second application. The order of the lower Court, dated 1st December, 1977 is therefore, correct. Civil Revision Petition No. 736 of 1978 is, therefore, dismissed.

4. Coming to C.R.P. No. 2277 of 1977, it is seen that the lower court dismissed the petitioners application under S. 20 on the ground that there was no satisfactory proof that she was an agriculturist as defined in S. 3 (ii) of the Act and that she had been described in the preliminary decree as housewife and not an agriculturist. The learned counsel for the petitioner contends that the said two reasons given by the lower Court are not sustainable, that as the decree which is sought to be scaled down is itself a mortgage decree in respect of the agricultural properties owned by the petitioner, no independent proof is necessary, that according to the definition in S. 3 (ii) the ownership of an agricultural land is sufficient to bring the petitioner within the definition of agriculturist, and that in these circumstances the lower Court was not justified in saying that there is no proof that the petitioner was an agriculturist. The learned counsel for the respondent does not dispute the fact that the petitioner is the owner of the agricultural land which is the subject-matter of the decree. Owners