Decided on September 29,1953



Chandra Reddy, J. - (1.) This is an appeal against the order of the Additional Subordinate Judge, Kakinada, reversing the order of the District Munsif of Feddapuram, dismissing the first respondent's petition filed under Section 19-A, Madras Agriculturists' Relief Act 4 of 1938, to declare that there was no debt outstanding under the bond dated 37-3-1934 or to declare the amount due thereunder. The first respondent's father executed a document styled Khandagutha usufructuary mortgage both in his Individual capacity and as the guardian of the then minor, first respondent. The amount mentioned in the document was Rs. 700. Under the terms of the document the creditors were to be in possession of the property for a period of 25 years, and, at the end of that period, the property was to be given back to the executants of the document, endorsing payment in full of the debt and returning the document also. The basis of the petition was that the transaction covered by the document in question was a usufructuary mortgage.
(2.) The petition was resisted by the appellants on the pleas 'inter alia' that the petition was not maintainable as the document in question was only a lease and that in any event the first respondent was not entitled to the relief as he was not an agriculturist. Construing the document as a lease and not a usufructuary mortgage, the trial court held that the petitioner before it was not entitled to claim the benefit of the provisions of the Act and therefore the petition was not maintainable.
(3.) On appeal the Subordinate Judge came to the contrary conclusion with regard to the construction of the document and held that the first respondent was entitled to relief if he was found to be an agriculturist and remanded the matter to the trial court for an enquiry as to whether he was an agriculturist. Against this order the present appeal has been filed. (4) Mr. Bapiraju, learned counsel for the appellants pressed upon me the view that since the trial court dismissed the application on the ground that the provisions of the Madras Agriculturists' Relief Act were not applicable to the present case, the appeal to the lower appellate court was incompetent and therefore, should not have been entertained by the Subordinate Judge. What is urged by him is that the right of appeal conferred on a person aggrieved by any order passed by the trial court under Section 19-A is under Section 25-A, Madras Agriculturists' Relief Act, 1938, and the latter section does not cover a case like the present one.;

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