Decided on August 21,1944



Patanjali Sastri, J. - (1.) THIS is an appeal brought by the plaintiff against a mortgage decree passed by the Court of the Subordinate Judge of Coconada on 10th December 1935 and amended by the same Court on 9th November, 1942 under the provisions of the Madras Agriculturists' Relief Act, 1938. The mortgage bond on which the suit was based was executed by the respondent's father for a sum of Rs. 40,000 describing the properties charged as his self -acquired arid separate properties. Belying on this description, the appellant alleged in the plaint that the properties were the separate properties of the mortgagor, but as the respondent was claiming an interest therein as the undivided son of the mortgagor he was also impleaded in the suit and a decsee for sale of the entire properties was sought on the footing that even if the properties were found to be the joint family properties of the respondent and his father, the latter having granted the mortgage for purposes binding on the respondent, the mortgage was valid also in respect of the respondent's interest. The mortgagor was defendant 1 and the respondent defendant 3 in the suit. Certain other persons were also made parties but this appeal is concerned only with defendant 3, the sole respondent.
(2.) THE Court found that the mortgaged properties were joint family properties of the respondent and his father but the mortgage having been effected mainly for the purpose of discharging certain antecedent debts of the mortgagor, it was binding on the respondent, and passed a decree for Rs. 1,13,448 -6 -4 with subsequent interest and costs to be recovered by sale of the entire hypotheca including the respondent's half share therein. The decree having thus granted to the appellant all the reliefs he claimed, though his case that the hypotheca was the separate property of the mortgagor was found against, the appellant had no occasion to prefer an appeal to displace that finding, as indeed no appeal could be preferred against a mere adverse finding to which no reference was made in the decree. While proceedings in execution were in progress, the Madras Agriculturists' Relief Act, 1938, (hereinafter referred to as the Act) was passed for a compulsory scaling down of debts due by "agriculturists" as defined in the Act. The respondent claiming to be such an agriculturist applied Under Section 19 to have the decree scaled down and "amended" in accordance with the provisions of the Act. The application was opposed by the appellant on the grounds, inter alia, (1) that the respondent was not an agriculturist within the meaning of the Act, and (2) that, in any case, the hypotheca was the separate property of the mortgagor who was not an agriculturist, and as the respondent was not made personally liable under the decree, he was not in any way affected by it and so could not claim to have it scaled down. It is to be observed that in order to qualify as an agriculturist under the Act, the respondent must have "a saleable interest in any agricultural or horticultural land" of the kind described in Section 3(ii) and the mortgaged property being admittedly such land, the first ground of objection would fail if the property, is owned by the joint family. The finding arrived at in the suit in regard to the joint family ownership of the property would thus be a complete answer to both the grounds of objection raised by the appellant if such finding could be regarded as res judicata in the proceeding for scaling down the decree, and the respondent contended accordingly. The Court below accepting the contention, refused to try the same issue again and amended the decree, so far as the respondent was concerned by (1) wiping out all the interest accrued due till 1st October 1937 Under Section 8, (2) reducing the interest on costs from six per cent, to five per cent, per annum till 22nd March 1938 Under Section 9 and (3) separating the respondent's half share of the debt as scaled down from that of his father (who was a non -agriculturist) Under Section 14. This result was that the respondent's liability was reduced to Rs. 20,000 (half of the principal sum originally advanced) with interest at six per cent, per annum from 1st October 1937 till date of payment and half the costs with interest at five per cent, per annum from 10th February 1936 till 22nd March 1938, and thereafter at 6 per cent, per annum till date of payment, his half share in the mortgaged property being made liable only for the reduced amount. The relief granted to the appellant under the original decree having thus been materially altered to her prejudice by the "amendment" Under Section 19 of the Act, she has. preferred this appeal from the decree as amended, challenging the correctness of the view taken by the learned Subordinate Judge on the question of res judicata and seeking to have the finding in the suit as to the joint family ownership of the mortgaged property reversed and set aside by this Court.
(3.) THE decree having been passed in 1935, and the appeal having been presented in 1943, a question of limitation arises at the threshold. Under Article 156, Limitation Act, the period prescribed for civil appeals to this Court is ninety days from "the date of the decree or order appealed from." If time ran from the date of the original decree the appeal would be hopelessly barred but if the period is calculated from the date of the amendment of the decree by the Court below on 9th November 1942, the appeal would be well within time. The question is which is the correct terminus a quo in the circumstances of the case the date of the original decree or the date of the amendment? It has to be borne in mind in this connexion that the amendment here in question was not one made in order to express the real intention which the original decree was meant to express but did not, such as an amendment Under Section 152, Civil P.C., in which case it may be that the amendment does not give rise to a fresh starting point though it may be a proper ground for extension of time Under Section 5, Limitation Act, see Yiswanathan Chetti v. Ramanathan Chetti, (1901) 24 Mad. 646. The position here is different and the circumstances are some -what peculiar. The appellant, as already stated, had obtained under the original, decree all the diet she had sought in the suit in spite of the adverse finding on the question of the joint family ownership of the hypotheca. She could riot, therefore, have appealed from the decree which made no reference to the finding: see Run Bahadur Singh v. Luohi Koer, (1985) 11 Cal. 301. The "amendment" Under Section 19 of the Act, however, brought about a vital alteration, as we have explained above, by substantially reducing the relief originally granted to her, and this alteration was based on the adverse finding which previously was not prejudicial to her. It would be startling if, in such circumstances, the appeal were to be held barred by limitation long before the appellant's right of appeal came into being. Such a construction of the phrase "the date of the decree" in Article 156 cannot be accepted. The article clearly presupposes that the remedy by way of appeal has become available to the appellant, and the date of the decree can only mean the date when the decree became appeal able for the party concerned: Pear Ammal v. Nalluswami Pillai, A.I.R. 1931 Mad. 149. It follows that the appeal is not barred by time. We may here observe that, even otherwise, we should have readily extended the time Under Section 5, Limitation Act, for, in our opinion, this is eminently a case where such extension would be justified. The appeal against the amended decree far as it has disallowed a portion of the relief claimed in the suit being thus admissible, no finding of the lower Court on which such disallowance is based can be res judicata, for the simple reason that no finding of a Court of first instance can be said to have "finally decided" any matter in issue when a competent appeal has been preferred from its decree.;

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