KUPPA SANKARA SASTRI AND ORS. Vs. KAKUMANU VARAPRASAD AND ANR.

JUDGEMENT

(1.) THE appellants were indebted to the respondents under a mortgage of 1928. A suit was filed on the mortgage and a preliminary decree was passed on the 13th August, 1937, for a sum of Rs. 4,119 -7 -4. A final decree followed on the 8th January, 1938. An application was filed under Section 19 of Madras Act IV of 1938 to scale down the decree. At the time when this application was filed, execution proceedings were pending. The application was rejected on the ground that the judgment -debtors were not agricultursts, they having no saleable interest in agricultural lands. The sale was held on the 9th January, 1939. Item I realised Rs. 1,900 and item II realised Rs. 2,223. The decree -holder was the purchaser of both lots. The judgment -debtors filed a revision petition against the dismissal of their application under Section 19 of the Act but there was no stay of confirmation of the sale, nor was any deposit made or tendered even of the admitted amount. The revision petition resulted in a decision that to the extent of their interest in the equity of redemption the judgment -debtors must be deemed to have been possessed of a saleable interest in agricultural lands and therefore to be agriculturists. The application under Section 19 of the Act was remitted to the trial Court with the result that the decree was scaled down to a sum of Rs. 1,728 -9 -0 and Rs. 493 costs with subsequent interest. On the basis of the decree as scaled down the amount which must be deemed to have been due at the time of the sale was approximately Rs. 2,469.

(2.) THE appellants claimed by way of restitution the cancellation of the sale on payment by them of the amount of the decree as scaled down. Both the Courts below have held that they were not entitled to have the sale cancelled but that they are entitled to a refund of the difference between the amount due on the decree as scaled down and the amount realised by the sale.

(3.) THE first argument cannot be sustained. It is now well settled that the general provisions of Section 7 of Madras Act IV of 1938 must be read in the light of the specific provisions of Section 19 relating to decrees; and unless and until the proper procedure has been taken to alter the decree, it is not open to the executing Court to refuse to execute the decree as it stands.