Decided on November 14,1972



- (1.) 1. This appeal arises out of an order of the learned Subordinate Judge, Kakinada reversing the order of the learned Munsif Magistrate. Kakinada and dismissing the application I. A. 4/66 in O. S. No. 414/49 filed by the judgment-debtor, Surampalli Vijavaramayya for scaling down the decree debt under sections 19 and 19-A read with section 8 of the Madras (now A P. (Andhra Area) Agriculturists Relief Act, Act IV of 1938, (hereinafter called as the Act). The facts which are not in dispute are as follows :- In O.S. 414/49 on the file of the District Munisf's Court, Kakinada, one Kanamuri Manikyalarao, obtained a decree against Surampalli Vijayaramayya on the foot of a promissory note dated 6-2-1929 executed by the said Vijayaramayya in favour of Yeamarthi Narayanamurihi Setti for a sum of Rs. 150/-. Several payments were made by the debtor on various dates till 31-5-1946 and endorsements to their effect were made on the promissary note. The total amount paid came to 2,106-1-0. It appears that subsequently the original promissee Narayanamurthi Setti dieiAnd thereafter his widow and their son transferred the said p'omiSlry note in favour of one Kanumuri Manikyalarao. Manikynlarao filed the suit O. S. 414/49 against the promissor, Surampalli Vijayaramayya and obtained a decree on 27-10-1950. The said decree was confirmed on appeal by the Subordinate Court and on second appeal by the High Court of Madras, During the pendency of the appeal in the Sub Court, the Judgment-debtor filed an application for scaling down the debt under the provisions of the Act, but that was dismissed. In second appeal the High Court held that the judgment debtor could move for scaling down the decree debt at any stage. Afer the death of the decree- holder Manikyalarao, the respondent herein Sundaramma brought herself on record as the decree-holder and asked for the transfer - of the decree to the District Munsif's Court, Visakhapatnam. That application was opposed by the judgment-debtor. After the decree was transferred to the District Munsif's Court, Visakhapatnam, the respondent filed a petition E.P. 121/62, for execution of the decree. At that stage, the judgment-debtor file an application, E. A. 825/62 under section 20 of the Act for stav of execution of the decree in E.P 1-21/62 to enable him to file an application under section 19 of the Act for scaling down the debt. The learned District Munsiff passed an order on 22-10-l962 granting stav of the execution proceedings, Thereafter the judgment-debtor file 1 an application I.A, 4/65, out of which this second appeal arises, un ler Section19 and 19-A read with Section 8 of the Act on 14-1-1963 for scaling down the decree debt, The judgment debt or alleged that he is an agriculturist and that under the provisions of section 8 of the Act a creditor is only entitled to twice the amount of principal in respect of a debt incurred before 1-10-1932 and by the date of the filing of the suit, O.S 414/49 the plaintiff had admittedly received a sum of Rs. 2106-1-0 and that the balance payable is only Rs. 893-15 and the decree debt is there- fore liable to be scaled down accordingly.
(2.) This application is opposed by the transferor-decree holder (respondent herein) stating that the petition filed under Section 19 was beyond the time prescribed by the Act and that it is barred by limitation ard that the judgment-debtor is not an agriculturist The application was originally disposed of by the District Munsif's Court on 22-2-1964 but on appeal 10 the court of the Sub- ordinare Judge the order was set aside and the petition remanded for disposal afresh. After remand the learned District Munsif held on a consideration of the evidence that the petitioner is an agriculturist and that he is entitled to the benefits of the Act and that the principal amount was Rs. 1500/- and that the decree-holder had received Rs, 2,106-06 and that the balance of the amount payable under the decree as per the provisions of section 8 of the Act was only Rs 893-95 and accordingly the decree was modified. The learned District Munsif however did not deal with the question of limitation raised by the decree-holder.
(3.) The decree holder carried the matter in appeal to the court of the subordinate Judge, Kakinada in A. S. 142/67. Before the learned Subordinate Judge the following three points arose for consideration. (1) Whether the petition is barred by limitation ? (2) Whether the petition is barred by res-judicata ? (3) Whether the petitioner is entitled to the benefits of Act IV of 1938 and if so, what is the amount due and payable. The learned Judge agreed with the view of the lower court that the petitioner is an agriculturist and is entitled to the benefits of the Act. He also held that the petition is not barred by resjudicata; But he held that the petition filed under Section 19 of the Act was barred by limitation on the ground that it was not filed within 60 days from the date of the order granting stay of the execution of the decree. He therefore allowed the appeal and dismissed the application I. A. No. 4 of 1966.;

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