Requisites for claiming benefits under the Act.

This is an appeal against the order of the Court below, allowing the petition tiled by the judgment-debtor for scaling down the decree debt.

2. The appellant herein filed a suit, O.S.No. 5334 of for recovery of a sum of Rs. 11,945, due on a promissory note executed on 30th November, 1964 for Rs. 9,000 with interest at 12 per cent, per annum from the date of the promissory note till the date of decree and thereafter at 6 per cent, per annum with costs Even at that stage, the defendants raised a plea that they are entiled to the benefits of Madras Act IV of 1938. Having regard to that defence the plaintiff was awarded interest only at 6 per cent, per annum on the principal amount from date of the promissory note. Subsequent to the passing of the decree, the second defendant died and the first defendant filed an application, I. A. No. 8834 of 1974, claiming benefits under Madras Act IV of 1938, as amended by Madras Act VIII of 1973. That petition was however, dismissed on the ground that the interest has already been scaled down to six per cent, even while passing the decree, and, therefore, there is no scope for a further scaling down as sought for by the first defendant.

3. Later, the first defendant filed I. A. No. 19839 of 1975, again claiming the benefits under the Madras Act VIII of 1973. The said application was opposed by the appellant-decree-holder on two grounds: (i) that the first defendant's earlier application claiming benefits under Madras Act VIII of 1973 having been dismissed and the same having become final, the present application for scaling down is barred by the principles of res judicata; and (ii) that the first defendant is not an agriculturist at all and therefore; he cannot have the benefits of Madras Act VIII of 1973. The Court below has, however, held that the first defendant is an agriculturist, and therefore, he is entitled to the benefits of Madras Act IV of 1938, as amended by Act VIII of 1973. It, however, failed to consider the first ground. This order of the Court below is being challenged in this appeal by the decree-holder.

4. The foremost point that is raised by the learned counsel for the appellant is that the Court below has not considered the objection raised by the decree-holder that the judgment-debtor's earlier application for relief under Madras Act VIII of 1973, having been rejected, he cannot again file an application for the same relief. It is also pointed out by the learned counsel that there are no materials placed before the Court below to prove that the first defendant was an agriculturist either on the date of the debt or on the date of the suit or on 1st March, 1972. It is pointed out by the learned counsel that though the first defendant, in his application for scaling down filed under section 19 has referred to the fact that he owns 9 acres of agricultural lands, no evidence has actually been adduced before the Court below, either oral or documentary, and therefore, the Court below is not justified in accepting the averment made in the application without positive proof that the applicant is an agriculturist.

5. The reasoning of the Court below for holding that the judgment-debtor is an agriculturist is contained in paragraph 5 of its order. It is stated therein:

“He had also filed documents and he is an agricultural debtor entitled to have the decree scaled down”.

But, the order does not contain any index of the documents filed by the judgment-debtor. The documents have also not been marked as exhibits. It does not say what are the documents filed and what is their purport and whether the documents are sufficient to prove the applicant's assertion that he is an agriculturist. It is well established that before a debtor claims the benefit of Madras Act IV of 1938 , as amended by Madras Act VIII of 1973, he should prove that he was an agriculturist both on the date of the debt and on the date when the debt is sought to be recovered by filing a suit. In addition, he has to pro