KANAKAMMAL Vs. MUHAMMAD KATHIJA BEEVI
HIGH COURT OF MADRAS
MUHAMMAD KATHIJA BEEVI
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Govinda Menon, J. -
(1.) In execution of the compromise decree passed in the appellate Court in O. S. No. 49 of 1923 on 13th November 1931 certain properties were sold on 6th December 1939. The appellant who is the decree-holder filed another application for execution and in that the judgment-debtor raised the objection that the application was barred by res judicata. In -- 'C.M.S.A. No. 177 of 1944' Bell J. held that the execution application was not barred by limitation. While this appeal was pending, the present respondent filed an application under Section 19 of the Madras Agriculturists Relief Act for scaling down the decree and both the lower courts held that the decree has to be scaled down. When the matter came up to this court in C. H. S. A. No. 243 of 1946 our learned brother Subba Rao J. held that the objection taken by the decree-holder that the judgment-debtor should have applied for sealing down the decree when the earlier application was pending cannot be maintained and therefore held that the judgment-debtor is entitled to scaling down and the learned Judge granted leave to appeal.
(2.) The question raised is one of the res judicata in execution namely whether it was the bounden duty of the judgment-debtor when an execution application was pending to raise the question regarding, the scaling down and If he failed to do that, whether it is open to him at a later stage to file an application for scaling down. Subba Rao J. held that the decision in --'Adaikappa Chettiar v. Chandrasekhara Thevar', ILR 1948 Mad 505, did not go to the extent of holding that an application under Section 19 of the Madras Agriculturists Relief Act is one relating to the execution of the decree in order that all the other provisions of the Code regarding executability of the decree should apply to that application. Subba Rao J. was of opinion that the decision of the Privy Council amounted to this, namely, that so far as appealability is concerned, an order under Section 19 should be deemed to be as if made under execution and no more.
(3.) We have perused the judgment of the Privy Council in -- 'Adaikappa Chettiar v. Chandrasekhara Thevan', ILR 1948 Mad 505, and it seems to us that their Lordships did not hold that an application under Section 19, Madras Agriculturists Relief Act, is one relating to execution of the decree. What their Lordships held was that the decision of this court in - 'Nagappa v. Annapoorni', ILR 1941 Mad 261, to the effect that no appeal lay from an order passed under Section 19 is incorrect, because in their Lordships' view a decision under Section 19 is one which finally determines the rights of the parties and is a formal expression of adjudication so far as the Court expressing it is concerned and it conclusively determines the rights of the parties with regard to one of the matters in controversy in the suit. Such being the case, an order under Section 19 is one which can come within the definition of the decree in Section 2(2), Civil P. C. Mr. Kesava Ayyangar relied upon the sentence at page 514 in -' Adaikappa Chettiar v. Chandrasekhara Thevar', ILR 1948 Mad 505, where their Lordships state that one of the orders contemplated in that appeal, namely, the order of 25th July 1938 was one relating to the execution, discharge or Kanakammal vs. Muhammad Kathija Beevi (29.01.1952 -MADHC) Page 3 of 4 ja Beevi (29.01.1952 -MADHC) Page 3 of 4 satisfaction of the decree within the meaning of Section 47 of the Code and an appeal lay under Section 96. The order was one passed under Section 20, Madras Agriculturists Relief Act, by which the judgment-debtor requested the court to postpone the execution of the decree in order to enable him to file an application for scaling down the decree. Section 20 lays down that if no relevant application under Section 19 is made within 60 days, then the execution will have to proceed. It cannot be disputed that so far as an order under Section 20 is concerned, it is one relating to execution of the decree, because what is asked for is a postponement of the execution of the decree and it is therefore a matter relating to the execution of the decree. The decision of the Privy Council referred to does not say that because of the above observations regarding the nature of the application under Section 20, the order under Section 19 should be treated as one falling within the definition of execution, discharge or satisfaction of the decree under Section 47, C. P. C.;
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