- (1.) This appeal is on behalf of the decree- holders in a mtge, suit and it is directed against a judgment and order of a D. B. of the Madras H. C. dated 5-1-1948, by which the learned Judges reversed, on appeal, an order of the Dist. J., East Tanjore, made in a proceeding under S. 47 and O. 21, R. 2, Civil P. C.
(2.) The material facts are not in controversy and may be briefly stated as follows. The applts. before us are the representatives of three original plts. who, as mtgees., instituted a suit (being O. S. NO. 30 of 1934) in the Ct. of the Dist. J. of East Tanjore, for enforcement, of a mtge., against the present resp. who was deft. 1 in the suit, and six other persons. The mtge. bond, upon which the suit was brought, was executed by deft. 1 for himself and his minor undivided brother, the deft. 2 and also as authorised agent on behalf of defts. 3 to 7 who were interested in a joint family business. The suit was contested by all the defts. except deft. 1. against whom it proceeded ex parte, and there was a preliminary decree passed on 15-5-1937, by which a sum of Rs. 1,08,098 was directed to be paid by deft. 1 and defts. 3 to 7, in default of which the pltfs. were declared entitled to apply for a final decree for sale of the mortgaged properties, and the suit was dismissed against deft. 2. Against this decree, two appea1s were taken to the Madras H. C. one by defts. 3 to 7-being Appl. No. 48 of 1938-Who contended that the mtge. was not binding on them or on their shares in the joint family property; and the other by the pltfs. -being Appl. No. 248 of 1938-Who challenged the propriety of the judgment of the trial Judge in so far as it dismissed their claim against deft. 2. During the pendency of these appeals, the Madras Agriculturists' Relief Act (Iv [4] of 1938) came into force and applns. were made by defts. 2 to 7 to the H. C. praying that in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the Act. The deft. 1, who did not appear at any stage of the proceeding, did not make any such appln. The H. C. forwarded these applns. to the lower Ct. for enquiry into the matter and for return, with its finding on the question as to whether the appcts. were agriculturists, and if so,to what extent, the decretal dues should be scaled down. The Dist. J., after making enquiries, Submitted a finding that the appcts. were agriculturists and that the debt, if scaled down, would amount to Rs. 49,255 with interest thereupon at 6% per annum from1-10-1937 exclusive of costs. On receipt of this finding, the appeals were set down for final hearing and by their judgment dated 25-3-1942, the learned Judges of the H. C. accepted the finding of the Ct. below and held that defts. 2 to 7 were entitled to have the debts Scaled down; but as no appln. had been made on behalf of deft. 1, he was hold entitled to no relief under the Act. A decree was drawn up in accordance with the judgment. The amount due by defts. 2 to 7 was stated to be Rs. 49,255 with interest there on at 6% per annum; while, so far as deft.1 was concerned, the decree at the trial Judge was affirmed subject to a slight modification regarding the rate at interest. The deft.1 thereupon filed an appln, in the Court of the Dist, J., East Tanjore, claiming relief under the Agriculturists Relief Act alleging that he too was an agriculturists and hence entitled to the benefits of the Act. The appln was dismissed on 25-9-1943, on the ground that as the decree had already been passed by the H. C. definitely negativing his claim to any relief under the Agriculturists Relief Act, such appln. was not entertainable by the lower Ct. The next step taken by the deft, 1 was to file an appln, in the H. C. itself, praying for setting aside the ex Parte decree which excluded him from the benefits at Act IV [4] at 1938. This appln, was rejected by tbe H. C, on 13-12-1943,
(3.) As no payment was made in accordance with the preliminary decree passed by the H. C., a final decree in terms of the same was passed by the Dist. J. on 25-9-1943. Proceedings for execution of this final decree were started on 16-8-1944 in E. P. 2 of 1945 of the Ct. of the Dist. J., East Tanjore. Two lots of the mortgaged properties were put up to sale and purchased by the decree-holder for a total sum of Rs.12,005 on 15-7-1946. The sale was confirmed on 17-8-1946 and part satisfaction of the decree was entered for that amount. Apparently, certain terms of settlement were thereafter offered by the judgment-debtors. The estate of the decree-holders was in the hands of the Receivers and from the Receivers' report dated 10-1-1947 it appears that the Receivers agreed with the sanction of the Ct., to receive Rs.94,000 only from or on behalf of deft. 2 and release him and his share of the mortgaged property from the decretal charge. Likewise, the Receivers were agreeable to receive Rs. 48,000 from defts. 3 to 7 and to release them and their properties from the decretal debt. Wirh. regard to deft. 1 the properties, which seems to have been accepted by the Receivers was that the amount payable by him under the decree was to be settled at Rs.37,500 and one Yacob Nadar would pay this amount on his behalf on consideration of the decree against deft. 1 being assigned to him by the Receivers excluding the rights of the latter to execute the decree against defts. 2 to 7 as scaled down by the H. C;