LexLAKSHMI ACHI AND OTHERS versus T.V.V. KAILASA THEVAR AND OTHERS
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2 S.C.R. SUPREME COURT '.'IBPORTS 259 we uphold the decision of the High Court and dismiss each of these appeals with costs. There will, however, be only one hearing fee. Appeal& dismissed. -- LAKSHMI ACRI AND OTHERS v. T.v.v. KAILASA TREVAR AND OTHERS (S. K. DAS, A. K. SARKAR, 1\1. HrnAYATULLAH and N. RAJAGOPALA AYYANGAR JJ.) D<bt Relief-Agriculturist-Scaling down of decree debt- Enabling statute coming into force pending appeal-Application made 1Jfter appellate decree, if barred by res-judicata-Madras Agric1.tturists Relief Act, 1938 (Mad. 4 of 1938), as amended by Madras Act 23 of 1948, BB. 16 (iii), 19 (2). The appellants had filed a suit on a mortgage against respondent No. I and others as defendants and had obtained a preliminary decree in it on May, 15, 1937 and a tinal decree on January 20, 1938. Appeals were filed against the preliminary Decree in the High Court of Madras. While the app.·als were pending there, the Madras Agriculturi•ts Relief Act, 1938 came into force. The defendants in this suit other than respondent No. 1 thereupon applied for relief under this Act. The appli- cations succeeded and the High Court passed a new preli- minary decree on March ~!5, 1942 after sca1ing down the amount recoverable in accordance with the Act. The respondent No. I had neither contested the suit nor appeared in the appeal! nor made any application under the Act for relief. 'T'he preliminary decree passed by the High Court, therefore, confirmed a• against him the decree passed by the trial Court. Respondent No. I thrreafter applied to the trial Court for relief under the Act but the application was dismissed on the ground that in view of the judgment of the High Court the application was not maintainable in the trial Court. Respondent No. I thereafter applied to the Hig;. 1969 A. S. Krishnappo Chaltiar ... NorhiaPP• Chmiar Mudholkor /, 1963 Morch 7 I 1963 Lakshmi Achi v. T. V. V. Kai/au Thevar 260 SUPREME COURT REPORTS (1964]VOL. Court for setting aside the exparte decree in so far as it deprived him of the right to relief under the Act but that application was also dismissed. OnJanuary 25, 1949, Madras Act XXIII of 1948 was passe<l amending the A~t of 1938 by adding a sub-s. (2) to s. 19. After this amendment s. 19 read, "(l) where before the commencement of this Act, a court has passed a decree for the repayment of a debt, it shall, on the application of any judgment-debtor who is an agriculturist .... apply the provisions of this Act to such decree and shall notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly or enter satis- faction, as the case may be. (2) The provisions of sub-sec- tion (I) shall also apply to cases where, after the commence- ment of this Act, a Court has passed a decree for the repayment of a debt payable at such commencement." Section 16 of the amending Act provided, "The amendments made by this Act shall apply to the following suits and proceedings, namely :- ...... (iii) all suits and proceedings in which th• decree or order passed has not been executed or satisfied in full before the commencement of this Act ....... ". Respondent No. 1 again applied to the trial Court for relief under the Act in view of the amendment but this application was rejected. Respondent No. 1 then appealed to the High Court which granted re!iei under the Act. The appellants thereupon appealed to the Supreme Court. Held, that the decree passed by the trial Court was superseded by the preliminary decree passed by the High Court on March 25, 1942. The final decree on the basis of this preliminary decree was passed by the District Judge on Septem- ber 25, 19+3, and this was the only operative decree in the case. Hence s. 19 (2) of the Act of 1938 read withs. 16 (iii) of the amending Act created a new right in favour of defendant No. 1. Jowad Hussain v. Gendan Singh, A. I. R. (1926) P. C. 93, Gajadhar Singh v. Kishan Jiwan Lal, ( 1917) I. L. R. 39 All. 641, The Collector of Customs Calcutta v. Th~ Ea•t Indian Commercial Go. Ltd. [1963] 2 S. C.R. 563, referred to. In the Act the word "debt" includes a decretal debt. Narayanan Ohettiar v. Amm.amalai Ohettiar, [1959] Supp. I S. C. R. 237, followed. Clause (iii) of s. 16 of the amending Act applies to this ~ase because the final decree had not been s~tisJ!ed in fu)l before 2 S.C.R. SUPREM;E COURT REPORTS 261 the
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