S. PL. NARAYANAN CHETTIAR versus M. AR. ANNAMALAI CHETTIAR

Mckenzie 6- Co. Lid. v. Its Workme11 and Others

Kapur].

(1) S.C.R. SUPREME COURT REPORTS

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the strikers had ta.ken up a belligerent attitude and the lock out was fully justified. The Labour Appellate Tribunal a.warded to the 24 workmen reinstated by its amended order dated September 28~ 1956, back wages from April 1, 1956, to the date of reinstatement as was done by the Industrial Tribunal in the case of work men Nos. 2 to 24, whom the Tribunal had ordered to be reinstated. As we have come to the conclusion that the order of reinstatement by the Industrial Tribunal of workmen Nos. 2 to 24 and by the Appel late Tribunal of workmen Nos. 25 to 48 was erroneous, neither of the two sets of workmen is entitled to back wages by way of compensation.

The appeal is therefore allowed and the decision of the Labour Appellate Tribunal as to all the workmen n.nd the award of the Industrial Tribunal as to work men Nos. 2 to 24 are set aside and the claim for com pensation which was argued before us is disallowed. As the workmen have been dismissed and no compen sat.ion has been allowed tho proper order as to costs is that both parties do pay their costs of this appeal.

Appeal allowed.

October 3r.

S. PL. NARAYANAN CHETTIAR v. M. AR. ANNAMALAI CHETTIAR (JAFER IMAM, S. K. DAS and J. L. KAPUR, JJ.)

Debt Relief-Agriculturist-Scaling down of decree debt-Enabl ing statute coming into force pending appeal-Application made after appellate decree-Whether barred by res judicata-Madras Agricul turists Relief Act, z938 (IV of z938), as amended, s. z9(2)-Madras Agriculturists Relief (Amendment) Act (XXIII of z948), s. z6, els. (ii), (iii).

In 1944 the respondent instituted a suit for the reco~ery of money due under an award dated July 31, 1935, whereby the appellant and his brother were directed to pay a certain amount to the respondent. The suit was dismissed by the trial Court

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Na•ayanan Ch•tti•• v.

but on appeal the High Court passed a decree on March 9, 1951. During the pendency of the appeal in the High Conrt the Madras Agriculturists Relief Act, 1938, was amended by Act XXIH of 1948, which inter aliaby adding sub-section (2) to s. 19 of the main Act enabled decrees passed after the commencement of the Act Annamalai Ch•tti•• to be scaled down under the provisions of the Act. By cl. (ii) to s. 16 of the amending Act, which came into force on January 25, 1949, it was provided that "that the amendments made by this Act shall apply to ......... all suits and proceedings instituted before the commencement of the Act, in which no decree or order has been passed before such commencement ". On Octo ber 5, 1951, the appellant made an application to the trial court for scaling down the decretal debt under s. 19(2) of the Madras Agriculturists Relief Act, 1938, as amended, but the application was dismissed on the ground that the trial court had no jurisdic tion to act under that sub-section as the decree sought to be scaled down had been passed by the High Court. The appellant preferred an appeal to the High Court and also made a separate application for scaling down the decretal debt under s. 19(2) of the Act. The High Court took the view that s. 19(2) was con trolled by s. 16 of the amending Act and that cl. (ii) of s. 16 was applicable to the case, but that as the appellant whose appeal was pending at the commencement of the amending Act did not apply for scaling down before the decree was passed although he had the opportunity to do so, his application subsequent to the decree was barred by the principle of res judicata.

Held, tha,t the High Court erred in its view that in order to get relief under s. 19(2) of the Act, read with cl. (ii) of s. 16 of the amending Act, the appellant must have made the appli cation when the appeal was pending and before a decree had been passed.

For the application of cl. (ii) of s. 16 of the amending Act, the true test is whether the suit or proceeding was instituted before January 25, 1949, and whether no decree or order for re payment of a debt had been passed before that date, and it is not necessary that the suit or proceeding should be pending on the date of the application under s. 19(2) of the Act. In cases covered by tha.t clause a party can ask for relief under the Act at two stages, before a decree for repayment of the debt had been passed, and also after such a decree had been passed, and since s. 19(2) of the Act in express terms enables a debtor to claim a relief under the provisions of the Act after a decree had been passed, the appellant is entitled to the benefit of s. 19(2) of the Act read with s. 16, cl. (ii), of the amending Act.

While cl. (ii) of s. r6 applies to suits and proceedings which wer~ instituted before January 25, 1949· but in which no decree or order had been passed, or the decree or final order passed had not become final, before that date, cl. (iii) applies to decrees or orders, which, though they had become final before January 25,

•

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239

1949, were still in the state of unfinished execution and at the stage at which satisfaction had not been fully received.

Venkataratnam v. Seshamma, I. L. R.

[1952] Mad. 492,

approved.

Narayanan Chettiar v.

The question whether cl. (ii) refers to decrees and onlers of Annanznlai Chettitir

a declaratory nature, which are not executable but which haYe become final before January 25, 1949, left open.

The opinion expressed in Jagannatham Chetty v. Partha sarathy Iyengar, A.LR. 1953 Mad. 777, that the word 'proceed ings' iu s. 16 of the amending Act must relate to proceedings instituted for repayment of a debt and not to execution proceed ings which are for enforcement of a decree or order, doubted and the question left open. CIVIL APPELLATE

JURISDICTION: Civil Appeal

No. 117 of 1955.

Appeal by special leave from the judgment and order dated the 25th l\'farch, 1953, of the Madrns High Court, in Civil Misc. Petition No. 6577 of 1952.

R. Ganapathy Iyer, for the appellant. Sardar Bahadu.r, for the respondent. 1958. October 31. The Judgment of the Court was

delivered by

S. K. DAs, J.-In this appeal, pursuant to special leave against the judgment and order of the High Court of Madras, the question for decision is whether the appellant who claims to be an agriculturist debtor is entitled to apply for scaling down of his decretal debt under the provisions of the Madras Agrieuhurists' Relief Act (Mad. IV of 1938), hereinafter called the Act, as amended by the Madras Agriculturists' Relief (Amendment) Act (Mad. XXIII of 1948), hereinafter called the amending Act.

The facts which have led to this appeal arc that a partnership firrri, briefly described as M.A.R. ]'irm, whose pa.rtners were Arunachalam Chetty, his two sisters and Subramaniam Chetty, was carrying on the business of money lending. On the death of Arunacha lam Chetty on July 6, 1916, Subramaniarn Chetty, one of the surviving partners, took over the assets of the dissolved partnership firm at a valuation of Rs. 25,000 and carried on the business under the name and style

s. r<. Das J.

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'95

s. K. Das. f.

Na,ayanan chettia' v.

of P.L. S. Firm of which the partners were Subramani- am Chetty, Vellachi Ac hi, and his two daughters, and in 1919 Palaniappa Chetty, father of the appellant, join- ed the partnership. The amount of Rs. 25,000 was credi- Am1amalui c1,,11;.,, ted in the accounts of the new partnership. On April 19, 1919, the accounts showed a balance of Rs. 16,369-12 as being due to the share of the deceased Aruna chalam Chetty which by the year 1935 swelled up to a figure of Rs. 55,933-15. Subramaniam Chetty died in 1924 and the business was carried on after his death by his widow Lakshmi Achi and her daughter and Palani appa Chetty. In 1930 Palaniappa Chetty died and his sons joined the business in his place. Disputes arose between the partners in 1935 which were referr.ed to arbitration and under an award given on. July 31, 1935, Arunachalam Ohetty and his sister were directed to pay to the estate of M.A.R. Rs. 34,958-ll-6 and the defendants, now appellant and his brother, a sum of Rs. 20,975-3 and corresponding entries were made in the account books of P.L.S. Firm. In 1944 the plaintiff, now respondent, as the adopted son of Arunachalam Chetty filed a suit for recovery of the amount which the award had directed the defendants to pay. The defendants were the two sons of Palaniappa Chetty. They denied the adoption of the respondent to Aruna chalam Che tty and also pleaded the bar of limitation. The trial Court held the adoption to be invalid and upheld the plea of limitation. The plaintiff took an appeal to the High Court which held the adoption to be valid and also held the suit to be within limitation. It remitted the case to the trial Court for determining certain issues and after the findings were received, the suit was decreed on March 9, 1951, for a sum of Rs. 26,839-15-9. The appellant applied to the High Court for leave to appeal to this Cburt'and also applied for stay. Leave was granted but stay was refused; as no security was furnished under the rules, the High Court later revoked the certificate granting leave.

During the pendency of the appeal in the High Court, the Act of 1938 was amended by the amending Act by which new reliefs were given to agriculturist debtors. On October 5, 1951, the appellant ma.de an

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Narayanan Chetliar v.

application to the Trial Court. for scaling down the decretal debt under s. 19 (2) of the Act which was ad- ded by the amending Act. The trial Court held that the decree could be scaled down under s. 19 (2) of the Act., but it had no jurisdiction to grant that relief as A 1111am,tai Cliellior the decree sought to be scaled down had been passed by the High Court. Against this order the appellant took an appeal to the High Court on July 4, 1952, and also made a separate application in the High Court for scaling clown the decretal debt under s. 19 (2) of the Act. The High Court dismissed the application on March 25, 1953. The appellant then applied for leave to appeal under Art. 133 of the Constitution but this was refused on OctoLer 6, 1953, and this Court gni.nted special leave on April 19, 1954.

s. K. Das f. ·

The ground on which the High Court refused relief under s. 19 (2) of the Act was that "the retrospective operation of s. 19 (2) was controlled by s. 16 of the Act XXIII of 1948 " and tha.t cl. (ii) of s. 16 applied and as the appellant whose appeal was pending at the eomrnencement of the amending Act did not apply for scaling down before the decree was passed although he had the oppor.tunit.y to do so, his application subsequ r~nt to the <leurue was barred by the principle of res judicata. 'fhe provisions of s. 19 (2) of the Act which gave the right to obtain relief of scaling down notwith standing the provisions of the Code of Civil Procedure to the contrary were held inapplicable, because s. 19 (2) of the Act was itself " limited by the provisions of s. 16 of Act XXlII of 1V48 ". The High Court observ ed that although the appellant had tiled an additio ual written statement claiming relief nuder the Burma Debt Li~ws, uo prnyer was wade for any reliof under t.ho Act. The High Court said :-

"A party who had an opportunity Lo raise a plea Lut did uot mise the Plea. is precluded by principles of res iudicata from raising the plea over again at a subsequent stage. But it is so.id that the principle of r£is jndicata has no application to the present case as section 19 (1) which is incorporated by reference iu section 19 (2) says that a petitioner would be entitl ed to the relief given to him under that section

3'

242 SUPREME COURT REPORTS

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Narayanat1 Chettiar v.

notwithstanding anything stated in the Code of Civil Procedure. But this argument ignores the fact that the scope of section 19 (2) is itself limited by the provi- sions of section 16 of Act XXIII of 1948" .

• innamoiai ChettiarThe High Court then referred to the full bench judg ), where at p. 454

ment in Sriramreddi v. Sriramreddi (1 it was said :-

s. K. Das J.

"But if the application is not made before the judg ment is delivered, it will be too late for a judgment. debtor to raise the question. The final judgment and the decree must be drawn up in accordance there with". But it is unnecessary for us to go into the effect of that judgment in the present case, because it dealt with a different situation and related to proceedings when the Act had not been amended.

The object of the Act as is shown by its preamble was to relieve an agriculturist of the heavy burden of indebtedness in the province (now State) of Madras. With that object in view provisions were made in the Act to scale down certain debts, as defined in the Act, of the agriculturist debtors. See T. N. Krishna Iyer v. NaUa Thambi Mudaliar and others('). The extent of scaling down of the debts and the procedure therefor were laid down in the Act. Section 19 made provi sion for scaling down of decrees. As the scope of relief under this section was limited to debts and dec rees anterior to the commencement of the Act in March, 1938, the objective to be achieved i.e. of giving relief to the agriculturist debtors remained unrealised and therefore the Legislature again stepped in and passed the amending Act, which commenced on Jan uary 25, 1949, the object of which was to give further relief in the case of debts incurred before the com mencement of the Act but where the decree was pass ed after such commencement and, secondly, where both the debt incurred and the decree passed were of a date after the Act. By the amending Act several amendments were made in the Act which were made applicable to suits and proceedings set out in s. 16 of the amending Act. One such amendment was the

(1) I.L.R. [1942] Mad. 346.

(2) (1955) I M.L.J. 215.

(1) S.C.R. SUPREME COURT REPORTS

243

addition of s. 19(2) and the amenalment of s. 19 of the Act which was renumbered as s. 19(1). This section which provides for scaling down of decrees, is as follows :-

rgsB

Narayanan Chelliar v.

S. 19(1) "Where before the commencement of AnnamalaiCltettiar

s. K. Das f.

this Act, a Court has passed a decree for the repayment of a debt, it shall on the application of any judgment- debtor who is an agriculturist or in respect of a Hindu joint family debt, on the application of any member of the family whether or not he is the judgment-debtor or on the application of decree holder, apply the provi- sions of this Act to such decree and shall notwith- standing anything contained in the Code of Civil Pro- cedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be :

Provided that all payments made or amounts re covered whether before or after the commencement of this Act, in respect of any such decree shall first be applied in payment of all costs as originally decreed to the creditor ".

(2) "The provisions of sub-section (1) shall also apply to .cases where after the commencement of this Act, a Court has passed a decree for the repayment of a debt payable at such commencement". Counsel for the appellant has contended that (1) the High Court had erred in its interpretation of s. 16(ii) of the a.mending Act, (2) had not given effect to the beneficial provisions of s. 19(2) of the Act, and (3) had erroneously applied the principles of res judica.ta. and thus impaired the efficacy of s. 19 which affords relief to an agriculturist debtor notwithstanding the provi sions of the Code of Civil Procedure to the contrary. It is necessary to refer at this stage to the amending Act, which came into force on January 25, 1949. Sec tion 16 of this Act provides:

S. 16 "The amendments made by

this Act shall apply to the following suits and proceedings, namely:-

(i) all suits and proceedings instituted after the

commencement of this Act;

(ii) all suits and proceedings instituted before the commencement of this Act, in which no decree or

244

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N•'"Y"''"" chetti"' v.

order has been passed, or in which the dccreCI or order has not become final, before such commencement;

0

,., J.

s. K.

(iii) all suits and proceedings in which the decree or order passed has not been executed or satisfied in Annamaz..; Chtttiar full before tho commencement of this Act: Pro\•ided that no creditor shall be required to refund any sum which has been pairl-to or realised by him before tho commencement of this .Act". Unfortunately, the langmi.gc of "· Hl is not very clear and lends itself to difficulties of interpretation. \V c agree with the High Court that s. 16 of the amending Act controls !:he amendments made by that Act in tho sense that those a.mcndments apply to the suits and proceedings described in the three clauses of s. 16. Sub-section (2) of s. 19 waH one of the amendment-R which was inserted by the ammending Act and there fore the appellant-debtor mnst establish that he is en titled to relief under sub-s. (2) of s. 19, because his cas" comes under one of the three clauses of s. 16. The High Court held that cl. (ii) of s. 16 applied in the present case; but the appellant-debtor could and should have raised the plea for relief under the Act when the appeal was pending in the High Court and as ho did not do so, he was barred from claiming relief under s. 19(2) on the principle of re.- iudicata. We do not think that this Yiew is correct anrl our reasons are the following.

The three clauses of s. 16 are independent of ea<'h other and cl. (i) refers to suits and proceedings insti tuted after the commencement of the amending Act. the relevant date being January 25, 1949. Clause (i) has no application in the present case and need not be further considered. Clause (iii), it seems clear to us, applies to suits and proceedings in which the decree or order passed had become final, but had not been executed or satisfied in full before Jan nary 25, 1949: this means that though a final decree or order for repayment of the debt had been passed before Jan nary 25; 1949, yet an agriculturist debtor can claim relief under the Act provided the decree has not been executed or satisfied in full before the aforesaid date. It should be remembered in this connection

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8

1 95 Naray""a" Chllliar v.

that the word ' debt' in the Act has a very compre- hensive connotation. It means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue court or otherwise etc. It is, Annamalai Cha11iar therefore, clear includes a decretal debt. On t,he view that cl. (iii) applies in those cases only where a final decrl'e or order for re- payment of the debt had been made before .Jan- uary 25, 1949, it has no application in the present case; because the decree for repayment of the debt was passed on l\Iarch 9, 1951, which was after ,January 25, 1949.

that the word ' debt '

s. K. Das 1·

We then go to cl. (ii). This clause is in two parts and talks of two different situations; one is when no decree or order has been passed and the other is when the decree or order passed has not become final. There is, however. a. common element, and the com mon element is that cl. (ii) refers to suits and pro ceedings instituted before January 25, 1949. Now, the argument which learned counsel for the appellant has presented is this. He says that the common element referred to above is satisfied in the present case, because the suit was instituted long before Jan uary 25, 1949. He then says that no decree or order for repayment of the debt having been passed before March 9, 1951, the first situation envisaged by cl. (ii) a.rose in the present case and the appellant-debtor was entitled to avail himself of all or any of the amend ments ipade by the amending Act, including the amendment made in s. 19 by the insertion of sub-s. (2) thereof. In the alternative, he says that if the word 'decree' or 'order' means any decree or any order, even then cl. (ii) applies, because the decree of dismis sal passed in the suit had not become final on Jan uary 25, 1949, for an appeal was then pending. We do not think it necessary to consider the alternative argument of learned counsel for the appellant ; because we are of the view that having regard to the other provisions of the Act, the words " decree or order " occurring in cl. (ii) must niea.n decree or order for re payment of a debt. Wha.t. then is the position before

I _, I \

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d

s. "· D•• J.

.v <JJ'ayrnu111 Chettia' v.

us ? As we see it, the position is this. Here is a suit which was instituted before the commencement of the amen ing Act, namely, January 25, 1949. This suit was pPnding on that date and no decree or order for re- A"""'""'"; Chc11ia, payment of the debt had been made by that date. The decree for repayment of the debt was made some two years after, on .Vfarch 9, 1951. Therefore, the two con ditions laid down for the first part of cl. (ii) are pre sent and it clearly applies to the present case. The High Court recognised this, but thought that the appel lant-debtor could ask for relief at only one stage, namely, when the appeal was pending and before a decree had been passed, and if the appellant-debtor did not do so, he was barred from claiming any relief on the principle of re8 judicata. It is here, we think with great respect, that the High Court has gone wrong. The relief under s. 19 (2), in terms, is a relief which can be claimed after a decree for repayment of the debt has been passed. It says that the provisions of sub-s. (1) shall apply to cases where, after the com mencement of the Act, a court has passed a decree for the repayment of a debt payable at such commence ment. The commencement of the Act referred to in s. 19(2) is the commencement of the main Act (Mad. IV of 1938),. It is not disputed that the debt in the present case was payable at such commencement and the court had passed a decree for repayment of that debt after such commencement. Section 19(2) in terms applied, and by reason of the provisions of sub-s. (1) of s. 19 which were also attracted to the present case, the appellant-debtor was entitled to the relief asked for notwithstanding anything contained in the Code of Civil Procedure, 1908. It is true that the doctrine of re.s .iudicata is a doctrine of wide import, and s. 11 of the Code of Civil Procedure is not exhaustive of it. There is high authority for the view that the principle of res judicata may apply apart from the limited pro visions of the Code of Civil Procedure, but the question before us, as we see it, is not so much the application of the principle of res judicata, as the proper construc tion of s. 19 of the Act and cl. (ii) of s. 16 of the amend In our opinion, s. 19 in express terms entitles ing Act.

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•

the the appellant-debtor provisions of the Act when the court has passed a. decree, after the commencement of the Act, for the repayment of a debt payable at such commencement.

to claim a relief under

r95B

Narayanan Chittiar v.

The question then is-does cl. (ii) of s.. 16 take a.way Annamalai Ch1ttiar

s. J(, Das J.

that right? We are unable to see how it qoes. We have already expressed the view earlier that the two conditions for the application of the first part of cl. (ii) of s. 16 are fulfilled in the present case. If that is so, we fail to appreciate how the appellant-debtor ca.n be barred from claiming relief under s. 19 (2) on the principle of res judicata. If the statute in express terms gives him a pa.rticula.r right, we do not see how he can be deprived of it. To hold that the appel- lant could ask for relief only when the a.ppea.l wa.s pending would be to deny him relief under s. 19(2), which relief he ca.n claim only after a. decree for repay- ment of the debt has been passed. It is true that he might have claimed relief under other provisions of the Act at the stage when his appeal was pending; for example, he might have claimed relief under s. 9. Does that, however, mean that he is precluded from claiming the relief under s. 19(2) after the decree ha.s been passed? We venture to think that the answer must be in the negative. To hold that the a.ppella.nt- debtor in the· present case could a.sk for a. relief only at the pre-decree "Stage will be ta.nta.mount to holding that he is not entitled to relief under s. 19(2), even though s. 16 says that all the amendments shall apply to suits and proceedings described in the three clauses thereof. If, as the High Court held, the amendments made by the a.mending Act could be availed of only when the provisions of s. 16 thereof applied a.nd further that cl. (ii) of that section applied to the present suit in its appellate stage, then all the amendments ma.de by the a.mending Act must apply including the amend- ment to cl. 19. It will be illogical to hold that a.11 the amendments apply save a.nd except sub-s. (2). It may prima facie a.ppea.r to be anomalous that it should be available to a party to ask forr relief under the Act after the passing of the decree, when he had an opportunity relief before the decree was of asking for

that

248 SUPREME COUR'l' REPORTS

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s. K. Das J.

Narayanan Ch.itiar v.

passed, but did not do so. The legislature may not have realised that this would be so,· but as the amend. ments stand, it is clear that in cases covered by cl. (ii) of s. 16 of the amending Act, a party is entitled to ask Annama/a; Ch<11iar for relief under the Act at two stages, before lt decree for repayment of the debt has been passed and also after such a decree has been passed. Different consider ations will, however, arise if a party asks for relief under the Act at the pre-decree stage and that relief is refused on the ground that the Act does not entitle him to any relief under it. If a party, even after snch refusal, makes a second applicatiou, then the principle laid down in Narayanan Chettiar v. Rathinaswam·i Padayachi ('), will apply and the second application must fail on the ground that it has already been deckl ed in his presence that he is not entitled to any relief under the Act.

One. other point h<>s to be referred to in this connec tion. On behalf of the respondent-creditor it has been pointed out to us that on the date the application for relief under s. 19(2) was made in the High Court, nu suit or pruoeeding · was actually pending, the High Court having passed a decree llluch eal"lier, na.lllely, on March 9, 1951. As a matter of fact, the application for relief under s. l!l(2) for scaling down the decree was ma.de in the High Court sometime in 1952. We are of the view that cl. (Ii) of s. 16 describes the nature of suits or .proceedings in which the amen<lment.s shall a.ppl,Y and the pendency of a. suit or proceeding on a particular date after J anua.ry 25, Hl4U, is not the true test. 'l'he true test is whether the suit or proceeding was illl!tituted before January 25, l94U, and whether in that suit or proceeding no decree or order for repayment of a. debt had been passed before that date. That test having been fulfilled in the present case, cl. (ii) of s. lu of the amending Act did not stand in the way of the i.ppella.nt·wl.ten he asked for relief under s. 19(2) of the Act.

We now tum to such authorities a.shave been placed before us. The authorities are not all consistent, a.nd the language of els. (ii) and (iii) of s. 16 of the amending

(<) A.l.R. 1953 Mad. 4>1.

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i958

the decision

N ~~;,,~;:n v.

Act has perhaps led to some of the difficulties of inter- prntation referred to therein. The earliest decision brought to our notice is in Velagala Sriramareddi and others v. Karri Sriramareddi (1). This is a full bench decision of the Madras High Court Annmnalai Chettiar to which we have already referred in an earlier part of this judgment. The next decision is that of Venkata- ratnam v. Seshamma (2), which; is also a Full Bench decision of the Madras High Court. It deals with the construction of clauses (ii) and (iii) of s. 16 of the amending Act with particular reference to the view expressed in certain earlier cases of the same High to cl. (iii) of s. 16. The view Court with regard expressed in the earlier cases, to which the learn- ed Judges who decided the case out of which the present appeal has arisen were parties, was that cl. (iii) of s. 16 had no application to proceedings in which the decrees and orders had become final before J anua.ry 25, 1949. The Fnll .Bench did not accept that view as correct. Satyanarayana. Rao, J., who delivered the judgment of the Court said:

s. K. D.is J.

"It cannot be doubted that the two clauses (ii) a.nd (iii) are entirely independent and a.re intended to provide for different situations ........ .

" The view ta.ken by the learned Judges in the Civil Miscellaneous Appeals, already referred to, was that, while the two clauses a.re independent, .clause (iii) has no application to proceedings in which the decrees and orders have become final before the commence ment of the Act. It is this view which is also pressed now before us by the learned Ad voca.te for the respon dent. While we agree with the lea.rued Judges in hold ing that the two .clauses a.re independent, we a.re unable, with great respect, to accept the view that clause (iii) applied only to cases in which the decrees and orders have not become final. If the decree or order has not become final before the commencement of this Act, clause (iii), in our opinion, seems to be un necessary a.nd as such the case would be covered by cla.use (ii). ~'urther, it would be difficult to imagine

(1) LL R. (1942] Mad. 346.

(2) I.L.R. [1952) Mad. 492, 498, 499.

32

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s. K. Das J.

N~~:it~:;• v.

that a decree or order which has not become final can be finally executed or can be finally satisfied. No doubt it is true that, even when an appeal is pending, a decree may be executed and satisfaction may be Annamalai Chettiar entered. But all that is only subject to the result of the appeal. If the appeal succeeds or the amount due by the defendant to the plaintiff is increased by the Appellate Court, fresh execution has to be started, the satisfaction must be re/opened and the execution must proceed. The Legislature, in our opinion, when it enacted these two provisions, must have intended that, even in the case of decrees or orders which have .become final, having regard to the provisions of the new Act, relief should be had by the judgment-debtor so long as the decree or order was not executed or was not satisfied in full before the commencement of the If, however, a decree was executed in part and, Act. before it was fully satisfied, the debt was scaled down under the provisions of the Act, as a result of which the creditor was found to have received more than what he was entitled to, the proviso enacts that, in such a situt\tion, the creditor should not be required to refund any sum which has been paid to or realised by him before the commencement of this Act. The qnes. tion is asked, and legitimately, as to which are the kinds of decrees or orders which have become final and which are sought to be excluded by implication in clause (ii) of section 16. It is of course not easy to give an exhaustive list of such decrees and orders. It may be that the legislature contemplated that decrees and orders of a declaratory nature, and which are not executable and which have become final before the commencement of the Act, need not be re-opened. A reading of the two clauses together would suggest that clause (iii) would apply exclusively to executable decrees or orders which, though they have become final hefore the commencement of the Act, are still in the stage of unfinished execution and at the stage at which satisfaction was not fully received. The view which we take, in our opinion, reconciles both the clauses and does not make any of the clauses unnecessary." We concur in the view expressed above that cl. (iii) of

(1) S.C.R. SUPREME ~OURT REPORTS

251

r958

Narayanan Chettiar v.

s. 16 applies to decrees or orders which, though they had become final before January 25, 1949, are still in the stage of unfinished execution and at the stage at which satisfaction has not been fully received, and cl. (ii) applies to suits and proceedings which were Annamolai Chettior instituted before January 25, 1949, but in which no decree or order had been passed or the decree or order passed had not become final before that date. We consider it unnecessary in the present case to go into the further question whether cl. (ii) refers to decrees and orders of a declaratory nature, which are not executable but which have become final before January 25, 1949. That is a question which does not fall for decision in the present case and we express uo opinion In Kanakammal v. Muhammad Kathija thereon. Beevi (1) it was observed:

5 · K Das .f.

" The mere fa.ct that the judgment-debtor raised an objection to the executability of ~he whole decree on the ground that it has to be scaled down is no ground for sea.ling down the decree and the court will not be justified in so scaling down without a separate application. This is also another ground for holding that the judgment-debtor is not barred from filing the application to scale down the decree even though he had not raised the question at an earlier stage of the execution proceedings. \Ve are therefore definitely of opinion that an application under s. 19 of the Act is not one which comes under s. 47, Civil Procedure Code, and therefore the principle of res judicata in execution cannot apply to the facts of the present case." The decision in Narayanan Chettiar v. Rathinasami Padayachi (2), related to a different point altogether, namely, sticccssive applications under s. I!) or s. 20 of the Act. In that case the question was whether the judgment-debtor not having filed an application under s. 19 within time from the date of the stay order under s. 20 passed on his from again filing prior application was precluded auother application under s. 20 followed by a.n appli cation under s. 19. It was held that he was not so In Jagamtatham Chetty v. Parthasarathy entitled.

the prescribed

{I) A.I.R. 1953 l\Iad. 188, l8g.

(2) A.I.R. 1953 Mad. 421.

252

SUPREME COURT REPOltTS

(1059] Supp.

r95B

Narnyanan Ch•ttiar v.

Iyengar (1) the question as to the meaning of the word 'proceedings ' in s. 16 was considered and it was observed that the word 'proceedings' ins. 16 must relate to proceectings instituted for repayment of a AnnamalaiCh"tiordebt and not f.o execution proceedings which are for enforcement of a decree or order. We greatly doubt s. I<. Das 1· whether that is the correct view to take, particularly when the expression 'debt' includes a decretal debt; but as the question does not arise in the present case we refrain from making any final pronouncement. In H emavathi v. Padmavathi (') it was held that the amending Act was retrospective so as even to apply to a debt which had already been scaled down once by the application of the Act and even where the rights of the parties had been finally adjudicated by de.cree or order of a court, provided that the decree or order ha.<l not been executed or fully satisfied. That was held to be the effect of cl. (iii) of s. 16 of the a.mending Act. In Lingappa Chettiai· v. Chinnaswami Naidu (3 ), the view taken by Subba ·Rao and Somasuuda.ram, JJ. (the same Judges who decided the present case) in au earlier decision that a party who had au opportunity of getting the beneficent prodsions of the Act applied to him before the amendment, but did not avail him self of the same, is disentitled to invoke the provisions of sub-s. (2) of s. 19, was dissented from and Govinda Menon, J., who gave the judgment of the Court, said: " \:Ve do not find any difficulty in holding that sub-s. (2) of section 19 is applicable to cases like the present, and the retrospective nature of that sub-sec tion a.s contemplated by clause (iii) of section 16 of Act XXIII of 1948 cannot be restricted or circumscribed by any other clause in that section." In T. N. Krishna Iyer v. Nallathambi Mudaliar and others (') Krishna.swami N ayudu, J., said that the object of s. 16 of the amending Act was to render the application of the amendments to a. wide range of suits, both to suits instituted before and after the com mencement of the a.mending Act and to such suits in which the decrees have not only become final but have

(1) A.I.R. 1953 Mad. 777· (3) (1955) I M.L.J. '· 5.

(2) I.L.R. [1954] Mad. 8g1. (4) (1955) I M.L.J. 215-

(1) S.C.R. SUPREME COUHT REPORTS

253

not been executed or satisfied and so long as something remains to be <lone out of the decree, the Act could be made .applicable. It seems to us that both on autho- rity and principle, the correct view'is that the appel- !ant was entitled to the benefit of s. 19(2) of the Act, Annamalai Chettiar read with s. 16, cl. (ii) of the a.mending Act.

,Varayanan Chettia• v.

r95!1

·

5 • K. Das f.

These are our reasons for holding that the view taken by the High Court is not correct and the appeal must, therefore, be allowed and the case sent back to the High Court for consideration on merits in accord- ance with law. The appellant will get his costs of this Court; costs incurred in the High Court before and hereafter will be dealt with by the High Court at the time of the final decision.

There were two applications filed by the appellant debtor for the relief which he claimed. One was filed . in the trial court and the other in the High Court. The trial court dismissed the application on the ground that the High Court a.lone had jurisdiction to give such relief. The appellant preferred an appeal to the High Court and also filed an application there. The question. which is the proper court to give relief to the appel lant is a matter on which we a.re making no pro nouncement. That is a. matter which will be dealt with by the High Court.

Appe,al allowed. Case remanded.