S. PL. P. NARAYANA CHETTIAR Vs. M. AR. ANNAMALAI CHETTIAR
HIGH COURT OF MADRAS
S. Pl. P. Narayana Chettiar
M. Ar. Annamalai Chettiar
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Subba Rao, J. -
(1.) THIS is a petition under Section 19(2) , Madras Agriculturists' Relief Act for scaling down the decree debt. On 9 -3 -1951 we passed a decree in favour of the plaintiff who had filed a suit for recovery of a sum of Rs. 28,645 -8 -0 with subsequent interest. The learned Subordinate Judge dismissed the suit on the ground that it was barred by limitation. On 20 -10 -1949 we delivered a judgment in the appeal against that decree holding that the plaintiff was the validly adopted son of M.A.R. Arunachalam Chettiar and that the suit was not barred by limitation. Learned counsel appearing for the defendants -respondents contended that his clients would not be liable for the suit amount as their father Palaniappa Chettiar became a partner of P. L. S. firm subsequent to the deposit. To enable us to decide the points raised we called for a finding from the learned Subordinate Judge on the following question:
"When did Palaniappa Chettiar, the father of the defendant became a partner of P. L. S. firm -
The learned Subordinate Judge submitted a finding on 12 -1 -1950 holding that Palaniappa Chettiar was a partner of P. L. S. firm from the beginning, i.e., from 3 -2 -1917. After objections were filed to that finding the appeal was again posted before us on 23 -2 -1951. On that day an additional written statement was filed by the defendants claiming relief under the laws of Burma in respect of interest. As that was a new point raised for the first time, we adjourned the appeal to enable the learned counsel for the plaintiff to investigate the matter and meet the point raised. On 5 -3 -1951 the said point was argued and we agreed with the defendants to some extent and gave the relief accordingly. That order was made on 9 -3 -1951. The result was that the plaintiff got a decree as prayed for except in regard to interest. The defendants preferred an appeal to the Supreme Court against our decree.
(2.) THE defendants filed an application in the Subordinate Judge's Court for scaling down the decree, but that was dismissed. It is represented to us that the learned Judge dismissed that application on the ground that it was not maintainable. After the dismissal of that application the present petition is filed by defendant 2 in this Court for scaling down the decree under the Agriculturists' Relief Act. Learned counsel for the petitioner relies upon Section 19(2), Agriculturists' Relief Act. Section 19(2) was added by Amending Act 23 of 1948. Sections 19(1) and 19(2) as they now stand read as follows:
"19 (1) 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 or in respect of a Hindu joint family debt, on the application of any member of the family whether or not he is the judgment -debtor or on the application of the decree -holder, 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 satisfaction, as the case may be:
Provided that all payments made or amounts recovered whether before or after the commencement of this Act, in respect of any such decree shall first be applied in payment of all costs as are originally decreed to the creditor.
(2) The provisions of Sub -section (1) shall also apply to case where, after the commencement of this Act, a Court has passed a decree for the repayment of a debt payable at such commencement."
Learned counsel for the plaintiff contends that as the petitioner did not raise the question of his relief under the Act at the time the appeal was disposed of by us, he is now precluded from raising that plea. But the advocate for the petitioner says that under Section 19(2) he is entitled as of right for the amendment of the decree notwithstanding the fact that he did not raise the plea at the time of disposal of the appeal. Under Section 19(2) the provisions of Section 19(1) apply to cases where after the commencement of the Act a Court has passed a decree for the repayment of a debt payable at such commencement. The decree in this case was made on 9 -3 -1951, and therefore the decree in question was one made after the Act came into force. But the retrospective operation of Section 19(2) is controlled by Section 16 of Act 23 of 1948. Section 16 reads as follows:
"16. The amendments made by this Act shall apply to the following suits and proceedings, namely:
(i) all suits and proceedings instituted after the commencement of this Act;
(ii) all suits and proceedings instituted before the commencement of this Act, in which no decree or order has been passed, or in which the decree or order passed has not become final, before such commencement;
(iii) all suits and proceedings In which the decree or order passed has not been executed or satisfied in full before the commencement of this Act;
Provided that no creditor shall be required to refund any sum which has been paid to or realised by him, before the commencement of this Act."
(3.) THE scope of this section has been laid down by a Full Bench of this Court in - - 'Venkataratnam v. : AIR1952Mad591 (A). Satyanarayana Rao J. in delivering the judgment of the Full Bench, states at p. 593 as follows:
"Bearing these principles in mind it is clear that Clause (ii) applies to pending proceedings, that is, proceedings which were instituted before the commencement of the Act but which did not become final before such commencement. This is made clear by the clause 'in which the decree or order passed has not become final'. It implies therefore that if the decree or order passed in a suit or proceeding becomes final before the commencement of the Act, the provisions of the Act cannot be applied to such a suit or proceeding. But in Clause (iii) the words 'in which the decree or order passed has not become final' do not occur. It is quite general and applies to all suits and proceedings in which the decree or order passed has not been executed or satisfied in full before the commencement of this Act so that it seems to apply to decrees or orders even if they had become final before the commencement of this Act provided the decree or order has not been executed or fully satisfied."
Section 16(1) applies to suits instituted after the commencement of the Act, Clause (ii) to suite or proceedings instituted before the commencement of the Act in which no decree or order has been passed which has become final, and Clause (iii) to suits or proceedings in which the decree or order passed has not been executed in full before the commencement of this Act. A combined reading of the three provisions indicates that Clause (ii) will apply if the decree or order had not become final before the Act and Clause (iii) if the decree or order, though became final, was not satisfied before the commencement of the Act. Act 23 of 1948 came into force on 25 -1 -1949. We delivered judgment on 9 -3 -1951. At the time the new Act came into force no final decree was passed in the suit. Therefore Section 16 Clause (ii) applies. If Section 16(ii) applied, the petitioner could and should have raised the plea when the appeal was argued before us that his client was entitled to relief under the provisions of the Agriculturists' Relief Act. Though he filed an additional written statement claiming reliefs in respect of interest under Burma laws, no attempt was made to ask for a relief under the Agriculturists' Relief Act. A party who had an opportunity to raise a plea but did not raise the plea is precluded by principles of 'res judicata' from raising the plea over again at a subsequent stage. But it is said that the principle of 'res Judicata' had no application to the present case as Section 19(1) which is incorporated by reference to in Section 19(2) says that a petitioner would be entitled to the relief given to him under that section notwithstanding anything stated in the Code of Civil Procedure. But this argument ignores the fact that the scope of Section 19(2) is itself limited by the provisions of Section 16 of Act 23 of 1948.;
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