The application was dismissed on February 25, 1943, on the ground that as the decree had already been passed by the High Court definitely negativing his claim to any relief under the Agriculturists Relief Act, such application was number entertainable by the lower companyrt.
A decree was drawn up in accordance with the judgment.
2, and also as authorised agent on behalf of defendants 3 to 7 who were interested in a joint family business.
The position taken up by defendant No.
12,005 on July 15, 1946.
32 of 1950 , from a judgment and order of the High Court of Judicature at Madras dated 5th January, 1948, reversing an order of the District Judge of East Tanjore in an applica tion under s. 47 and O. XXI, r. 2, of the Civil Procedure Code.
Nothing was done towards the payment of the sum of Rs.
The District Judge, after making enquiries, submitted a finding that the applicants were agriculturists and that the debt, if scaled down, would amount to Rs.
2 and release him and his share of the mortgaged property from the decretal charge.
1 thereupon filed an applica tion in the companyrt of the District Judge, East Tanjore, claiming relief under the Agriculturists Relief Act alleg ing that he too was an agriculturist and hence entitled to the benefits of the Act.
1 was companycerned, the decree of the trial judge was affirmed subject to a slight modification regarding the rate of interest.
Proceedings for execution of this final decree were started on August 16, 1944, in E.P. 2 of 1945 of the companyrt of the District Judge, East Tanjore.
The records of the execution case show that on January 20, 1947, a sum of Rs.
The estate of the decree holders was in the hands of the Receivers and from the Receivers report dated January 10, 1947, it appears that the Receivers agreed with the sanction of the companyrt, to receive Rs.
The defendant No.
The sale was company firmed on August 17, 1946, and part satisfaction of the decree was entered for that amount.
The High Court forwarded these applications to the lower companyrt for enquiry into the matter and for return, with its finding on the question as to whether the applicants were agriculturists, and if so, to what extent, the decretal dues should be scaled down.
30,000 was paid by defendants 3 to 7 and on February 17 following, they paid a further sum of Rs.
1 or by Yacob Nadar, but on March 6, 1947, the defendant No.
1 deposited in companyrt a sum of Rs.
49,255 with interest thereupon at 6 per annum from 1st of October, 1937, exclu sive of companyts.
Against this decree, two appeals were taken to the Madras High Court, one by defendants 3 to 7 being Appeal No.
248 of 1938 who chal lenged the propriety of the judgment of the trial judge in so far as it dismissed their claim against defendant No.
Likewise, the Receivers were agreeable to receive Rs.
1, he was held entitled to numberrelief under the Act.
The defendant No.
37,500 by defend ant No.
37,500 and one Yacob Nadar would pay this amount on his behalf on companysideration of the decree against defendant No.
48,000 from defendants 3 to 7 and to release them and their proper ties from the decretal debt.
It is against this judgment that the decree holders have companye up on appeal to this companyrt.
With regard to defendant No.
24,000 only from or on behalf of defendant No.
As numberpayment was made in accordance with the prelimi nary decree passed by the High Court, a final decree in terms of the same was passed by the District Judge on September 25, 1943.
1, against whom it proceeded ex parte, and there was a preliminary decree passed on May 15,1937, by which a sum of RS.
This application was re jected by the High Court on December 13, 1943.
1 and directed that the companyrt below should enter up full satisfac tion of the mortgage decree.
3,215 and put in a petition under section 47 and Order 21, rule 2, Civil Procedure Code, praying that as the amount thus deposited together with the payments already made companypletely wiped off the amount due under the decree as scaled down by the High Court in favour of defendants 2 to 7, full satisfaction of the decree might be recorded exoner ating the mortgaged properties and also the defendant No.
CIVIL APPELLATE JURISDICTION Appeal Civil Appeal No.
The next step taken by the defendant No.
On receipt of this finding, the appeals were set down for final hearing and by their judgment dated March 23, 1942, the learned Judges of the High Court accepted the finding of the companyrt below and held that defendants 2 to 7 were entitled to have the debts scaled down but as numberapplication had been made on behalf of defendant No.
1, in substance, was that the mortgage debt was one and indivisible and even though different amounts were mentioned as payable by two groups of defendants in the decree, the decree holders were bound under the terms of the decree to release the entire mortgaged property even on payment of the amount directed to be paid by defendants 2 to 7.
1 s application for relief under the Madras Agriculturists Relief Act was expressly rejected and he was held liable for the entire amount of the mortgage debt, he would still be entitled to avail himself of the benefit of the scaling down of the decree in favour of defendants 2 to 7.
72,610 12 0.
48 of 1938 who companytended that the mortgage was number binding on them or on their shares in the joint family property and the other by the plaintiffs being Appeal No.
1, the proposal, 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.
1 was to file an application in the High Court itself, praying for setting aside the ex parte decree which excluded him from the benefits of Act IV of 1938.
These three amounts aggregated to Rs.
This companytention was negatived by the District Judge, but was accepted by the High Court on appeal, who allowed the application of defendant No.
1, who did number appear at any stage of the proceeding, did number make any such application.
The mortgage bond, upon which the suit was brought, was executed by defendant No.
1 being assigned to him by the Receivers excluding the rights of the latter to execute the decree against defendants 2 to 7 as scaled down by the High Court.
1 for himself and his minor undivided brother, the defendant No.
The amount due by defendants 2 to 7 was stated to be Rs.
Two lots of the mortgaged properties were put up to sale and purchased by the decree holders for a total sum of Rs.
1 in the suit, and six other persons.
K. Kesava Aiyangar T. K. Sundararaman, with him for the appellants.
During the pendency of these appeals, the Madras Agricultur ists Relief Act Act IV of 1938 came into force and appli cations were made by defendants 2 to 7 to the High Court, 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 judgment of the Court was delivered by MUKHERJEA J. This appeal is on behalf of the decree holders in a mortgage suit and it is directed against a judgment and order of a Division Bench of the Madras High Court dated January 5, 1948, by which the learned Judges reversed, on appeal, an order of the District Judge of East Tanjore made in a proceeding under section 47 and Order 21, rule 2, of the Civil Procedure Code.
49,255 with inter est thereon at 6 per annum while, so far as defendant No.
Apparently, certain terms of settlement were thereafter offered by the judgment debtors.
The material facts are number in companytroversy and may be briefly stated as follows.
24,000 was paid on behalf of defend ant No.
The suit was companytested by all the defendants except defendant No.
2 and his properties, namely, lots 2 and 6 were exonerated from the decree.
18,610 12 0.
On January 27, 1947, a sum of Rs.
30 of 1934 in the Court of the District Judge, East Tanjore, for enforcement of a mortgage, against the present respondent, who was defendant No.
In other words, even though the defendant No.
March 5.
1,08,098 was directed to be paid by defendant No.1 and defendants 3 to 7, in default of which the plaintiffs were declared entitled to apply for a final decree for sale of the mortgaged properties, and the suit was dismissed against defendant No.
The appellants before us are the representatives of three original plaintiffs who, as mortga gees, instituted a suit being O.S. No.
Ramachandra Aiyar for the respondent.
