1,08,098/ was directed to be paid by defendant No.
Appeal by special leave from the judgment and order dated December 2, 1955 of the Madras High Court in C. M. A. 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 property and the suit was dismissed as against defendant No.
This application was rejected by the High Court on December 13, 1943.
1 on companysideration of the decree against defendant No.
The estate of the decree holders was then in the hands of the receivers, and it appears that the receivers agreed, with the sanction of the companyrt to receive Rs.
1 being assigned to him, the receivers would accept the same.
2 and his properties were exonerated from the decree.
The appellants before us are the representatives of the original plaintiffs who as mortgagees instituted a suit being O. S. No.
1 thereupon filed an application in the companyrt of the District judge, East Tanjore, claiming relief under the principal Act alleging that he too was an agriculturist and hence entitled to the benefits of the Act.
We may number state the long history.
Defendants 3 to 7 also paid a sum of Rs.
With regard to defendant No.
Some of the mortgaged properties were sold and purchased by the decree holders for a total sum of Rs.
In the companyrse of these proceedings certain terms of settlement were offered by the judgment debtors.
As this companyrt pointed out in Ramaswami Ayyangars case supra , a preliminary decree was drawn up in accordance with the judgment of the High Court by which the amount due from defendants 2 to 7 was scaled down while so far as defendant No.
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.
12,005/ and part satis faction of the decree was entered for that amount.
During the pendency of these appeals the principal Act came into force and applications were made by defendants 2 to 7 to the High Court prayingthat in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the principal Act.
The High Court forwarded these applications to the lower companyrt for enquiry and asked for a finding on the question whether the applicants were agriculturists and if so, to what extent the decretal dues should be scaled down.
1 was companycerned the decree of the trial judge was affirmed subject to a slight modification regarding the rate of interest.
He has also referred us to the decree passed in the High Court on March 25, 1942.
30 of 1934 in the companyrt of the District judge, East Tanjore for the enforcement of , a mortgage against respondent No.
This application was dismissed on February 25, 1943 on the ground that as a decree had already been passed by the High Court definitely negativing his claim to any relief under the principal Act, such application was number entertainable by the lower companyrt.
Against this decree, two appeals were taken to the Madras High Court, one by defendants 3 to 7 being Appeal No.
The three amounts paid by defendants 2 to 7 totalled Rs.
I 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 the principal Act.
These decrees, however, were superseded by the preliminary decree which the High Court passed on March 25, 1942.
1, who was defendant No.
On March 6, 1947 defendant No.
49,255/ with interest thereon at six per cent per annum, while so for as defendant No.
24,000/ only from or on behalf of defendant No.
But a sum of Rs.
I was negatived by the District Judge, but was accepted by the High Court on appeal which allowed the application of defendant No.
This companytention of defendant No.
I himself from any further liability in respect of the decretal debt.
A decree was drawn up in accordance with this judgment.
48,000/and odd in two instalments in discharge of their decretal debt.
Likewise the receivers agreed to receive Rs.
24,000/ was paid on behalf of defendant No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
49, 255/with interest thereon at six percent per annum from October 1, 1937 exclusive of companyts.
The judgment of the Court was delivered by K. DAS J. This is an appeal by special leave from the judgment and order of the Madras High Court dated December 2, 1955 by which the said Court set aside the order of the learned District judge of East Tanjore dated August 30, 1950 passed on an application made by the 1st respondent herein, unders.
1 prayed that as the decree was one and indivisible, full satisfaction of the decree should be recorded exonerating the mortgaged property and also defendant No.
19 of the Madras Agriculturists Relief Act Act IV of 1938 , hereinafter called the principal Act, as amended by the Madras Agriculturists Relief Amendment Act of 1948 Act XXIII of 1948 .
3215/ and put in a petition under s.47 and Order XXI r. 2 C. P. C. praying that the amount deposited by him together with the payments already made by defendants 2 to 7 companypletely wiped off the amount due under the decree as scaled down by the High Court in favour of defendants 2 to 7 defendant No.
On receipt of this finding the appeals were set down for final hearing and by their judgment dated March 25, 1942 the learned judges of the Madras High Court accepted the finding of the companyrt below and held that defendants 2 to 7 were entitled to have the debt scaled down, but as.
I was companycerned, the decree of the trial Judge was affirmed subject to a slight modification regarding the rate of interest.
When numberpayments were made as directed by the preliminary decree of the High Court a final decree in terms of the same was passed by the District judge himself on September 25, 1943.
1 is companycerned, a preliminary decree was passed against him on May 15, 1937 and a final decree on January 28, 1938.
The mortgage bond upon which the suit was brought was executed by defendant No.
The next step taken by defendant No.
Defendant No.
2 and release him and his share of the mort gaged property from the decretal charge.
By the said order the learned District judge dismissed the application as unsustainable in law.
March 7.
30 of 1934 on December 6, 1950 was unsustainable in law.
1 in the suit, and six other persons.
The suit was companytested by all the defendants, except defendant No.
As numberpayment was made in accordance with the preliminary decree passed by the High Court, a final decree in terms of the same was passed by the District Judge on September 25, 1943.
I also the receivers agreed to accept Rs.
The decree holders then came up to this companyrt in appeal C. A. No.
72,610 12 0.
The amount due by defendants 2 to 7 was stated to be Rs.
248 of 1938 , who challenged the propriety of the judgment of the trial judge in so far as it dismissed their claim against 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 for himself and his minor undivided brother, defendant No.
numberapplication had been made on behalf of defendant No.1 he was held entitled to numberrelief under the principal Act.
No such payment was however made on behalf of defendant No.
The present appeal is directed against this order of the High Court.
2, and also as authorised agent on behalf of defendants 3 to 7, who were interested in a joint family business.
1 and directed that the companyrt below should enter full satisfaction of the mortgage decree.
The District Judge made the necessary enquiry and submitted a finding that the applicants were agriculturists and that the debt, if scaled down would amount to Rs.
617 of 1960.
I against whom it proceeded ex parte.
Proceedings for execution of this final decree were started on August 16, 1944 when an execution petition was filed in the companyrt of the District judge, East Tanjore.
1 deposited in companyrt a sum of Rs.
48,000/ from defendants 3 to 7 and to release them and their properties from the decretal debt.
The position taken up by defendant No.
K. Ramamurthi, D. P. Singh, R. K. Garg and S. C. Agarwala, for respondent No.
355 of 1951.
I who did number appeal at any stage of the proceedings did number make any such application.
Defendant No.
V. Viswanatha Sastri, R. Ganapathi Iyer and G. Gopalakrishnan for the appellants.
A preliminary decree was passed on May 15, 1937 by which a sum of Rs.
