Decided on August 24,1944

Moidin Bacha Rowther And Anr. Appellant
I.S. Chidambaram Pillai Respondents


Wadsworth, J. - (1.) THE appellants who are also the petitioners in the civil miscellaneous petitions, were indebted to the respondent under a promissory note of 1928. The respondent filed a suit and in February 1985 obtained an ex parte decree. He appealed against the decree seeking a charge in respect of the amount declared due. In that appeal the judgment -debtors were not served with notice although they were the sole respondents, the Court having apparently dispensed with the service of notice under the provisions of the proviso to Order 41, Rule 14, Civil P.C., read with Appellate Side Rules 12A(17). In our opinion when an appeal is filed and the only1 respondents to that appeal are persons who have allowed the proceedings in the trial Court to go on ex parte it is undesirable to apply the proviso to Rule 14 of Order 41, Civil P.C., without an attempt to serve at least one of those respondents. The appeal against the decree was, however, heard in the absence of the respondents thereto and it was dismissed; so that on the face of it, it would appear that the debtors suffered no harm by reason of the hearing of the appeal ex parte.
(2.) THE matter was, however, complicated by the fact that the appeal resulted in a decree of the High Court dated 28th July 1939; whereas Madras Act 4 of 1938 giving a right to judgment -debtors Under Section 19 to apply for the scaling down of a decree, came into force on 22nd March 1938. The debtors took no action to secure the benefits of Act 4 of 1938 until in 1942 the decree -holder sought to execute the High Court's decree. Thereupon, the debtors, instead of moving the High Court, started proceedings in the trial Court Under Section 19 of Act 4 of 1938 to scale down the decree. The trial Judge held on 7th July 1943, that in view of the passing of the High Court's decree after Act 4 of 1938 came into force, he had no jurisdiction Under Section 19 to scale down the decree debt. Thereupon, the debtors filed the present appeal, C.M.A. No. 586 of 1943 and on 25th August 1943 they also filed an application in this Court, C.M.P. No. 3519 of 1943, to re -bear App. No. 199 of 1936 in order to give them an opportunity to urge in the re -hearing of the appeal their claim to relief under Act 4 of 1938. C.M.P. NO. 3518 of 1943 has also been filed at the same time to excuse the delay in filing C.M.P. No. 3519 of 1943. By way of supplementing their application for the re -hearing of the appeal against the decree, they subsequently filed C.M.P. NO. 3791 of 1943 which is a petition for scaling down the debt and C.M.P. NO. 3792 of 1943 which is a petition for stay of proceedings. It was held by this Bench in Ramaswami Udayar v. Ramanathan, A.I.R. 1941 Mad. 373 that Section 19 of Madras Act 4 of 1938 has no application to decrees passed after the Act came into force and that the same rule applied to decrees in appeal of which the affected party has had notice. Our recollection is that this observation regarding notice was inserted because we did not then wish to prejudge the case which might arise of an appeal dismissed Under Order 41, Rule 11, Civil P.C., without any opportunity being given to the debtors to appear and contest. There is a later judgment of one of us in Palani Mudaliar v. Athiappa Goundan, A.I.R. 1943 Mad. 160 in which it was held that an application Under Section 19 to scale down the trial Court's decree passed before the commencement of Act 4 could not be entertained when there was an appellate decree passed after Act 4 came into force, even though the debtor seeking relief had no notice of the appeal. It seems to us now to be well -settled that when the trial Court's decree has been superseded by an appellate decree passed after Act 4 came into force, no application Under Section 19 will lie to the trial Court to scale down the trial Court's decree. It follows that C.M.A. No. 586 of 1943 has to be dismissed with costs.
(3.) IT remains to be considered whether the debtors can succeed in their application to rehear the appeal against the decree in the suit. Section 5, Limitation Act, has not been made applicable to proceedings Under Rule 21 of Order 41, Civil P.C. If, therefore, the applicants are to succeed they must succeed by virtue of Section 14, Limitation Act. It is contended that as soon as the applicants knew of the appellate decree, they prosecuted a proceeding, which, though it has now been found to be a wrong proceeding, was at any rate prosecuted in good faith in order to get the decree scaled down, and that when they apply now to have the appeal against the decree re -heard, the relief which they seek is substantially the same relief namely, to get the decree scaled down. This contention involves the reading of Section 14 in a somewhat liberal way; for undoubtedly the relief sought in the application Under Section 19 is not precisely the same as the relief sought in the application to re -hear the appeal. The only relief in terms stated in the latter application was the relief of the re -hearing of the appeal, though doubtless the object with which the petitioners sought to get the appeal reheard was to obtain an opportunity to raise the same contentions as those which they had unsuccessfully raised in the abortive proceedings Under Section 19. Our attention has been drawn to a decision of King J. in Vaithilinga Naidu v. Narayanaswami Naidu, A.I.R. 1943 Mad. 457 wherein a very liberal construction of the phrase "the same relief" in Section 14 has been adopted. But it does not appear that the attention of the learned Judge was drawn to the decision of the Privy Council in Maqbul Ahmad v. . In that case their Lordships had to deal with an application for a final decree in a mortgage suit in which the applicants sought Under Section 14, Limitation Act, to take advantage of the time spent in an erroneous proceeding to execute the preliminary decree. Their Lordships observe: It is impossible to say, apart from any other objection, that the application to obtain execution under the preliminary decree was an application for the same relief as the application to the Court for a final mortgage decree for sale in the suit. That being so, it is not permissible, on the basis of Section 14, in computing the period of limitation prescribed, to exclude that particular period.;

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