On the 5th August, 1935, the first respondent filed an application under Order XXI, rule 90, and section 47 of the Code of Civil Procedure, to set aside the sale held in July, 1935, alleging certain irregularities in the companyduct of the sale.
21,000 with interest thereon at 6 per cent.
At the same time, they held that the sale was number liable to be set aside, and in this view dismissed one of the appeals and allowed the other.
21,000 together with interest within a months from that date.
per annum from the date of sale till the date of payment.
440 of 1937 and C.M.P. No.
The Subordinate Judge answered the questions referred to him by the High Court on remand as follows The judgment debtors were number agriculturists and were number therefore entitled to the benefits of the Madras Actand If they were agriculturists, they were number liable to pay anything under the decree, as, in view of the provisions of the Act, the debt stood discharged on the date of sale.
This letter was number placed before the learned Judges until the judgment had been signed by them and ac companydingly the judgment debtors filed two petitions, one being a review petition to the High Court and the other being a petition to the trial Court praying that the de creeholder may be ordered to pay to the petitioners the purchase money of Rs.
Thereupon, he was directed to pay the sum of Rs.
The trial Court dismissed the latter petition on the ground that it was number maintainable, and the judgment debtors filed an appeal against the order.
The appeal as well as the review petition of the judgment debtors were heard together by the learned Judges who directed the decree holders companynsel to elect whether his client would deposit the purchase money into Court or have the sale set aside.
When however the matter came up before the learned Judges of the High Court, they reversed the first finding of the trial Court and held that the judgmentdebtors were agriculturists within the meaning of the Act, and that the debt stood discharged in view of section 8 2 of the Act.
As has been already stated, the main point arising in these appeals relates to the effect of the Madras Act upon this litigation.
21,000 and the second for Rs.
The first property was sold for Rs.
That Act was passed and came into effect in 1938, while the execution proceedings were still companytinu ing.
As, however, the amount due under the decree was only about Rs.
56 and 57 of 1949.
dated 24th October, 1945, in A.A.O. Nos.
Rangachari K. Mangachari, with him for the respond ents.
It may be stated here that along with the application for leave to appeal, the appellant had filed an application for excusing the delay in filing the former application which he accounted for mainly by refer ring to the proceedings for the review of the judgments in the previous appeals to the High Court.
This application was granted and the delay was companydoned.
It appears that on the next day after the judgment of the High Court was delivered in the two appeals, companynsel for the respondents wrote a letter to the Registrar of the High Court to direct the posting of the two cases for being mentioned before the Court in order to obtain necessary directions companysequent on the orders passed by it in the appeals.
Appeals from the orders of the High Court of Judica ture at Madras Wadsworth and Patanjali Sastri JJ.
The decree holder applied for a short adjournment and ultimately on the 15th November, 1946, his companynsel stated that his client wished to retain the property which he had purchased and to pay the purchase money into Court.
These appeals were heard together by two learned Judges of the Madras High Court and they took the view that the judgment debtors application under the Madras Act was maintainable numberwith standing the fact that the sale had been companyfirmed and full satisfaction of the decree recorded, and remitted the case to the trial Court for a finding on the following questions, namely 1 whether the applicants were agriculturists and 2 if so, what would be the result of applying the provisions of Madras Act IV of 1938 to the decretal debt against them ?
1,025.
On the 6th July, 1935, two items of proper ty were sold in execution of the decree and purchased by the decree holder, these being 1 a village called Tedlam in in West Godavari District and 2 4 acres and 64 cents of land in Madepalli village.
It will be recalled that the sale took place on the 6th July, 1935 and the application for setting it aside was number disposed of until the 6th March, 1943.
Subsequently, the appellant decree holder having obtained leave to appeal from the High Court preferred these appeals before us.
17,860 and odd, the sale of the second property was subsequently set aside and the decree holder deposited into Court the excess amount of about Rs.
3,000 and odd after setting off the decretal amount against the price of the first item of property.
After about 12 days, i.e., on the 18th March, 1943, the first respondent and the second respondent, who had been adopted by the former on the 12th March, 1936, under the will of her hus band and was subsequently brought on record, filed an appli cation under section 19 of the Madras Act praying for cer tain reliefs under that Act.
That application was after several years heard by the Subordinate Judge of Ellore, who by his order dated the 6th March, 1943, dismissed it and directed the sale of the first property to be companyfirmed and full satisfaction of the decree to be entered.
APPELLATE JURISDICTION Civil Appeals Nos.
How far this belated application affects the right claimed by the judg ment debtors under the Act is one of the questions raised in these appeals, and I shall deal with it after referring to the material provisions of the Act and the findings of the High Court which have given rise to several debatable points.
But, strangely enough, the judgmentdebtors did number apply for any relief under the Madras Act during this period, and they made their application only after the sale had been companyfirmed and satisfaction of the decree had been entered.
Subsequently, two appeals were filed on behalf of the respondents who will hereinafter be sometimes re ferred to as judgment debtors , one against the order refus ing to set aside the sale under Order XXI, rule 90 of the Civil Procedure Code, and the other against the order dis missing the application under the Madras Act.
So far as regards the judgment debtors appeal against the order dismissing their application under Order XXI, rule 90, the Learned Judges were inclined to agree with the trial Court that the sale should stand but declined to pass final orders in the appeal on the ground that it would seriously prejudice the judgment debtors in the companynected application for relief under section 19 of the Madras Act IV of 1938.
The Court delivered judgment as follows.
was therefore brought on the record as his legal representative.
This application was dismissed on the 22nd March, 1943.
87 of 1923.
Several years before the assignment of the decree, Veeresa lingam, the defendant, had died and his widow, the first respondent.
Somasundaram V. V. Choudhry, with him for the appellant.
9,000 from one Sitharamayya, and executed a mortgage bond in his fa vour.
372 of 1943 and 634 of 1944 which were appeals from the orders of the Subordinate Judge of Ellore in E.A. No.
In 193a, the decree holder transferred the decree to one Sobhanadri, after whose death his son, the appellant before us, was brought on the record as his legal representative in the execution proceedings.
Subsequently a suit was instituted by the mortgagee to enforce the mortgage and a final decree in that suit was passed on the 19th August, 1926.
Thereafter, on the 28th October, 1931,the decree holder applied for the execution of the decree by the sale of the mortgaged property.
152 of 1943 in O.S. No.
October 17.
