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PETITIONER: K.   HUTCHI GOWDER

       Vs.

RESPONDENT: RICHOBDAS FATHAIMULL AND COMPANY

DATE OF JUDGMENT: 24/07/1964

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  577            1964 SCR  (8) 306

ACT: Madras   Agriculturists  Relief  Act-Debt   incurred   after commencement   of   Act-Final   Decree-Scaling   down-Madras Agriculturists  Relief Act, 1938 (Mad. 4 of 1938).  ss.  13, 19.

HEADNOTE: The respondent, who was the assignee-mortgagee of a mortgage deed  executed on February 15, 1945 by the appellant  for  a certain  sum  payable with interest, filed a  suit  for  the recovery  of  the sum with Interest.  The suit  ended  in  a compromise  under  which  a decree was  passed  and  certain payments  were made towards the decree.  In due  course  the respondent  moved  for the passing of a final  decree.   The appellant  applied  for scaling down of the debt  under  the Madras  Agriculturists  Relief Act.  The  respondent,  inter alia,  contended  in  his  objections  filed  against   this application  that as the debt sought to be scaled  down  was incurred subsequent to the date of commencement of the  Act, the decree could not be scaled down under s. 19(2) of the                             307 Act.  The Subordinate Judge overruled the objection and held that the debt was liable to be scaled down in terms of s. 13 of  the  Act.  On appeal, the High Court held  that  as  the statutory right to have the interest scaled down was not put forward  before  the consent decree was passed,  the  decree could not be scaled down at the stage of the final decree  R proceedings.  It further held that s. 19(2) of the Act  only applied to debts payable at the commencement of the Act and, therefore,  the application for scaling down the decree  was not maintainable.  On appeal by certificate, Held:     Sections  7, 8, 9 and 13 form a group of  sections providing  the principles of scaling down of debts  incurred by agriculturists under different situations.  A debt can be scaled down in an appropriate proceeding taken in respect of the  same.   But  in case of debts that  have  ripened  into decrees, s. 19(1) and (2) prescribe a special procedure  for reopening  the  decree  only in respect  of  debts  incurred before  the Act.  The Madras Agriculturists Relief Act  does not provide for the reopening of decrees made in respect  of debts   incurred   after  it  came  into  force,   and   for understandable reasons the relief in respect of such decrees

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is specifically confined only to a concession in the rate of interest.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 80 of 1962. Appeal from the judgment and decree dated December 19, 1957, of the Madras High Court in C.M. Appeal No. 303 of 1956. A.  V. Viswanatha Sastri, V. Ratnam and R.  Ganapathy  Iyer, for the appellant. G.S. Pathak and R. Thiagarajan, for the respondent. July 24, 1964. The Judgment of the Court was delivered by SUBBA RAO, J.This appeal by certificate raises the  question whether  a  decree  obtained in a suit  to  enforce  a  debt incurred  after the Madras Agriculturists Relief  Act,  1938 (Act  4  of 1938), hereinafter called the Parent  Act.  came into  force could be scaled down under s. 13 of  the  Parent Act. The  facts  are  as  follows:  On  February  15,  1964,  the appellant and 4 others executed a mortgage deed in favour of Kaverlal  Chordia  for a sum of Rs. 2,00,000  payable  after three  years  with interest at 9 per cent.  per  annum.   On January 24, 1946, the mortgagee assigned the said mortgage 308 in  favour  of  the respondent.   Certain  payments  towards principal  and interest were made thereunder.   On  February 28, 1950, the assignee-mortgagee i.e., the respondent, filed a suit, O.S. No. 55 of 1950, in the Court of the Subordinate Judge,  Nilgiris,  Ootacamund,  for  the  recovery  of   Rs. 1,98,487-8-0, made up of Rs. 1,50,000 for the balance of the principal  and  Rs.  48,487-8-0 for  interest  due  on  tile mortgage.  The suit ended in a compromise dated December 21, 1950,  under which a decree was passed for Rs.  1,50,000  on account of principal, with interest and further interest  at 9 per cent. per annum and costs, subject to some concessions being shown in the event of payments, being made in  certain specified  instalments.  Thereafter, certain  payments  were made towards the decree.  In due course the respondent filed I.A. No. 382 of 1953 for the passing of a final decree.   On June  24, 1955, the appellant filed O.P. No. 24 of 1955  for scaling   down  the  debt.   The  respondent,  inter   alia, contended   in  his  objections  filed  against   the   said application  that as the debt sought to be scaled  down  was incurred subsequent to March 22, 1938, which is the date  of the commencement of the Parent Act. the decree could not  be scaled  down under s. 19(2) of the Parent Act.  The  learned Subordinate  Judge overruled the objection and held  by  his order  dated August 10, 1956. that the decree was liable  to be  scaled  down in terms of s. 13 of the  Parent  Act.   He accordingly  scaled  down  the decree debt.   On  appeal,  a Division  Bench  of the Madras High Court held that  as  the statutory right to have the interest scaled down was not put forward  before  the consent decree was passed,  the  decree could  not be scaled down at the stage of the  final  decree proceedings.   It further held that s. 19(2) of  the  Parent Act only applied to debts payable at the commencement of the &aid Act and therefore, the application for scaling down the decree was not maintainable.  In the result it set aside the order  of the Subordinate Judge and dismissed  the  petition for scaling down the debt.  Hence the present appeal. Mr.  A.  V.  Viswanatha  Sastri,  learned  counsel  for  the appellant,  did  not press the appellant’s  claim  under  s. 19(2) of the Parent Act, but put it under s. 13 of the  said

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Act.                             309 He  took  us through the relevant provisions of  the  Parent Act, which according to him disclose the legislative  policy undermining  the sacrosanctity of decrees and pressed on  us to  hold,  on a scrutiny of the provisions of s. 13  of  the Parent Act in the light of the said policy, that the  decree made in respect of a debt incurred after the Parent Act came into force was liable to be scaled down thereunder. Mr.  Pathak,  learned counsel for the  respondent,  makes  a distinction  between  the substantive  and  procedural  pro- visions  and contends that the Parent Act does not make  any provision for scaling down decrees made in respect of  debts incurred  after the said Act came into force.   The  general scheme  of the Parent Act gathered therefrom may be  briefly stated thus.  The main object of the Parent Act was to  give relief  to agriculturists.  "Debt" has been defined in s.  3 (iii)  of the Parent Act as 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.  This definition is rather  com- prehensive; it takes in secured, unsecured and decree  debts due  from  an agriculturist.  Section 7 of  the  Parent  Act declares that a debt so defined has to be scaled down in the manner  prescribed by the said Act.  Section 8 provides  the mode  of scaling down debts incurred before, 1932 and s.  9, the debts incurred after 1932 but before March 22, 1938; and s.  13 deals with the scaling down of debts  incurred  after the  commencement  of the Parent Act.   The  relief  granted under  the  said  Act  varies with  the  date  of  the  debt depending  upon whether it falls under one or other  of  the said  three  periods.   While ss. 7, 8, 9 and  13  give  the principles  for  scaling  down a debt, s.  19  provides  the machinery  for scaling down.  Section 19 of the Parent  Act. as amended in 1948, reads:               "(1)  Where  before the commencement  of  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......  apply the  provisions  of               this Act to such decree               310               and shall, notwithstanding anything  contained               in  the Code of Civil Procedure,  1908,  amena               the decree accordingly or enter  satisfaction.               as the case may be:               (2)   The provisions of subsection (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. It  may be mentioned that the second clause was inserted  by the Amending Act of 1948.  Before the amendment there was  a conflict  of view on the question whether s. 19(1) could  be invoked  in amending a decree passed after the  commencement of  the Parent Act in respect of a debt incurred before  the said  Act.   Sub-section  (2) made the  position  clear  and declared that it could be done.  The position, therefore, is that  in  the  case of debts other than  decree  debts,  the scaling  down  process  will have to be resorted  to  in  an appropriate  proceeding taken in respect of the debt and  in the case of decrees in respect of debts incurred before  the Parent  Act  whether made before or after the said  Act,  by filing  an  application under s. 19(1) or (2) of  the  Board Act, as the case may be  But s. 19 on its express terms does

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not  permit  the  filing of an application  for  amending  a decree by scaling down a debt incurred after the Parent  Act came  into  force.   Doubtless,  as  Mr.  Viswanatha  Sastri contents,  the  Parent Act, to some extent,  undermines  the sanctity of decrees, but that is to implement the policy  of the  Legislature  to  give  relief  to  agriculturists  over burdened with debts.  But a Court, particularly in the  case of  an expropriatory measure like the Act, cannot rely  upon the supposed policy of the Legislature and extend the  scope of the relief given to agiculturists by analogy.  The  scope of the relief shall necessarily be confined to that given by the  Act  expressly  or by necessary  implication.   A  fair reading  of sub-sections (1) and (2) of s. 19 of the  Parent Act   disclose   beyond  any  reasonable  doubt   that   the Legislature  does not provide thereunder any  machinery  for reopening a decree made in respect of a debt incurred  after the Act came into force. 311 Realizing this difficulty’ Mr. Viswanatha Sastri relied upon the  provisions of S. 13 itself and contends that  the  said section  provides, in the case of debts incurred  after  the Parent Act came into force, both for the substantive  relief as  well as for the machinery to give the said relief.   The said section reads: "In  any proceeding for recovery of a debt, the Court  shall scale  down  all  interest due on any debt  incurred  by  an agriculturist after the commencement of this Act, so as  not to  exceed  a sum  calculated at 6 1/4 per cent. per  annum,               simple interest.............." The Government by notification reduced the rates of interest to 5 1/2 per cent per annum with effect from July 29,  1947. Let us scrutinize the provisions of the section in the light of  the arguments advanced. Learned  counsel  asks us to read  the words  "decree  debt" instead of "debt" in s. 13 of the Parent Act, for "debt"  is defined  to  take in a decree debt, and by  so  reading,  he contends,  in  any  proceeding,  which,  according  to  him, includes, a final decree application, the court shall  scale down  all interest in the manner prescribed thereunder.   It is  further  argued that final decree proceedings  are  only proceedings in a suit and, therefore, the word "recovery" in the  sub-section is appropriate in the context of  a  decree debt.   This  argument,  if accepted,  disturbs  the  entire scheme of the Parent Act.  Section 13 is one of the group of sections viz., ss. 8, 9 and 13, dealing with the  principles of scaling down in a proceeding for the recovery of a  debt. But where a decree is to be amended, the Act has taken  care to  provide expressly for the amendment of the  decree.   If the  Legislature  intended to provide for the  amendment  of decrees  even in cases falling ’under s. 13, it  would  have added  another appropriate clause in s. 19. The  absence  of any  such  clause indicates an intention that  in  cases  of debts  comprehended by s. 13, the Legislature gives  only  a limited relief expressly thereunder.  It is said, so far  as the  reopening  of decrees after the Parent  Act  came  into force is concerned, whether in respect of 312 debts  incurred before or after the said Act,  there  cannot possibly  be a justification for a difference in the  manner of their treatment.  A plausible reason can be discerned for this  legislative distinction between debts incurred  before the Act and those incurred after the Act; for, in the former when  the debts were incurred the Act was not  in  existence and,   as  the  debtors  could  not  have  anticipated   the provisions  of the Act, they were given the summary  remedy,

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but  the agriculturists who incurred debts after the  Parent Act  with  -open  eyes were denied the same;  while  in  the former, they were allowed to reopen decrees made in  respect of  the  said debts before or after the Act, in  the  latter they  could claim relief only in an  appropriate  proceeding before the decree was made and that too was confined to  the limited  relief in regard to the rate of  interest  provided thereunder.   The  difference in the treatment  of  the  two categories  of decrees was brought about by sub-section  (2) of  s. 19 added by a later amendment.  Whatever may  be  the reason for the difference, we cannot extend the scope of  s. 13  by  analogy or by stretching the meaning  of  the  words "proceeding" and "recovery". Reliance  is  placed upon s. 13-A of the  Parent  Act  which reads: "Where  a  debt  is incurred by a reason  who  would  be  an agriculturist  as  defined  in section  3(ii)  but  for  the operation of proviso (B) or proviso (C) to that section  the rate  of interest applicable to the debt shall be  the  rate applicable to it under the law custom, contract or decree of Court under which the debt arises or the rate applicable  to an agriculturist under section 13, whichever rate ’is less." On the basis of this section a contention is raised that ss. 13  and  13A  relate to the  same  subject-matter  with  the difference  that while s. 13 applies to  agriculturists  who incurred debts after the Parent Act came into force, s.  13A applies  to persons who would be agriculturists but for  the provisos  (B) and (C) of s. 1 (ii) in respect of  debts  in- curred after the Act, and as a fair reading of s. 13-A indi- cates that it applies to decrees made in regard to debts in- 313 curred after the Act, it must be interpreted reasonably that s.  13  also applies to such decrees.  Mr.  Pathak,  learned ,counsel  for  the respondent, on the other  hand,  contends that  s. 13-A only applies to pre-Act debts, as s.  7  which -declares  the scheme of scaling down of debts applies  only to  pre-Act debts and the only exception to it is  s.  13-A. Be that as it may, we cannot construe s. 13 with the aid  of s. 13-A which was introduced by the Amending Act 23 of 1948. This  appeal does not call for an interpretation of s.  13-A of the Act and we shall not express any opinion thereon. The  legal position may be briefly stated thus.  Section  7, 8,  9  and  13  form  a  group  of  sections  providing  the principles  of  scaling down of debts incurred  by  agricul- turists  under different situations.  A debt can  be  scaled down  in an appropriate proceeding taken in respect  of  the same.   But  in  the case of debts that  have  ripened  into decrees, s. 19(1) and (2) prescribe a special procedure  for reopening  the  decree  only in respect  of  debts  incurred before the Parent Act.  The Parent Act does not provide  for the  reopening of decrees made in respect of debts  incurred after it came into force, and for understandable reasons the relief  in respect of such decrees is specifically  confined only to a concession in the rate of interest. For  the  foregoing reasons, we hold that the order  of  the High Court is correct . In the result, the appeal fails  and is dismissed with costs. Appeal dismissed