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PETITIONER: S.   PL. NARAYANAN CHETTIAR

       Vs.

RESPONDENT: M.   AR. ANNAMALAI CHETTIAR

DATE OF JUDGMENT: 31/10/1958

BENCH: DAS, S.K. BENCH: DAS, S.K. IMAM, SYED JAFFER KAPUR, J.L.

CITATION:  1959 AIR  275            1959 SCR  Supl. (1) 237

ACT:        Debt Relief-Agriculturist-Scaling down of decree debt-Enabl-        ing  statute  coming into force  Pending  appeal-Application        made   after   appellate  decyee-Whether  barred,   by   res        judicature-Madyas  Agriculturists  Relief Act, 1938  (IV  of        1938),  as  amended, S. 1g(2) Madras  Agriculturists  Relief        (Amendment) Act (XXIII Of 1948), S. 16, CIS. (ii), (iii).

HEADNOTE: In 1944 the respondent instituted a suit for the recovery 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 238 but  on  appeal the High Court passed a decree on  March  9, 1951.   During the pendency of the appeal in the High  Court the  Madras Agriculturists Relief Act, 1938, was amended  by Act  XXIII of 1948, which inter alia by  adding  sub-section (2)  to S. 19 of the main Act enabled decrees  passed  after the  commencement  of the Act 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 October 5,  1951,  the appellant made an application  to  the  trial court  for scaling down the decremental 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 jurisdiction 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 controlled 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

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although  he had the opportunity to do so,  his  application subsequent to the decree was barred by the principle of  Yes judicature. Held, that 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 application 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 repayment 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 that clause a  party can  ask  for relief under the Act at two  stages  before  a decree  for repayment of the debt bad 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. i6, cl. (ii), of the amending Act. While  cl.  (ii) of s. i6 applies to suits  and  proceedings which were 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, 239 1949, were still in the state of unfinished execution and at the stage at which satisfaction had not been fully received. Venkataratnam  v.  Seshatnma,  1. L.  R.  [1952]  Mad.  492, approved. The  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, left open. The opinion expressed in jagannatham Chetty v. Parthasarathy Iyengar,  A.I.R. 1953 Mad. 777, that the word  ’proceedings’ in  s.  i6 of the amending Act must  relate  to  proceedings instituted  for  repayment of a debt and  not  to  execution proceedings which are for enforcement of a decree or  order, doubted and the question left open.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 117 of 1955. Appeal  by special leave from the judgment and  order  dated the  25th  March, 1953, of the Madras High Court,  in  Civil Misc.  Petition No. 6577 of 1952. R. Ganapathy Iyer, for the appellant. Sardar Bahadur, 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 Agriculturists’ 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  are  that  a partnership  firm, briefly described as M.A.R.  Firm,  whose

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partners  were  Arunachalam  Chetty,  his  two  sisters  and Subramaniam  Chetty, was carrying on the business  of  money lending.   On  the death of Arunachalam Chetty  on  July  6, 1916,  Subramaniam  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 240 of  P.L.  S.  Firm of which the  partners  were  Subramaniam Chetty,  Vellachi Achi, and his two daughters, and  in  1919 Palaniappa  Chetty,  father  of the  appellant,  joined  the partnership.   The amount of Rs. 25,000 was credited 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 Arunachalam 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 Palaniappa Chetty.  In 1930 Palaniappa  Chetty died  and  his  sons  joined  the  business  in  his  place. Disputes  arose  between  the partners in  1935  which  were referred to arbitration and under an award given on July 31, 1935, Arunachalam Chetty and his sister were directed to pay to the estate of M.A.R. Rs. 34,958-11-6 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 Arunacbalam 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  Arunachalam Chetty 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 Court 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 made an 241 application to the Trial Court for scaling down the decretal debt  under  s.  19 (2) of the Act which was  added  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, 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 down 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 October 6, 1953, and this Court granted  special leave on April 19, 1954. 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 "

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and  that  cl. (ii) of s. 16 applied and  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.  The provisions of s. 19 (2)  of the  Act  which gave the right to obtain relief  of  scaling down  notwithstanding  the provisions of the Code  of  Civil Procedure to the contrary were held inapplicable, because a. 19(2)     of the Act was itself " limited by the  provisions of s.     16 of Act XXIII of 1948 ". The High Court observed that although the appellant had filed an additional  written statement  claiming  relief under the Burma  Debt  Laws,  no prayer  was  made for any relief under the  Act.   The  High Court said :- " A party who had an opportunity to raise a plea but did not raise  the Plea is precluded by principles of  res  judicata from  ’raising  the plea over again at a  subsequent  stage. But  it  is said that the principle of res judicata  has  no application  to the present case as section 19 (1) which  is incorporated  by  reference in section 19 (2)  says  that  a petitioner  would  be entitled to the relief  given  to  him under that section 244 order  has been passed, or in which the decree or order  has not become final, before such commencement; (iii)     all  suits and proceedings in which the decree  or order  passed  has not been executed or satisfied  in  ,full before  the  commencement  of this  Act:  Provided  that  no creditor shall be required to refund any sum which has  been paid  to or realised by him before the commencement of  this Act Unfortunately,  the language of s. 16 is not very clear  and lends  itself to difficulties of interpretation.   We  agree with the High Court that s. 16 of the amending Act  controls the  amendments  made by that Act in the  sense  that  those amendments  apply to the suits and proceedings described  in the  three clauses of s. 16.  Sub-section (2) of s.  19  was one  of the amendments which was inserted by  the  ammending Act  and therefore the appellant-debtor must establish  that he is entitled to relief under sub s. (2) of s. 19,  because his case 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 he did not do so,  he  was barred from claiming relief under s. 19(2) on the  principle of res judicata.  We do not think that this view is  correct and our reasons are the following. The three clauses of s. 16 are independent of each other and el. (i) refers to suits and proceedings instituted after the commencement  of the amending Act, the relevant  date  being January  25,  1949.  Clause (1) 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  January  25, 1949: this means that though  a  final decree  or order for repayment of the debt had  been  passed before  January  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 241 application to the Trial Court for scaling down the decretal

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debt  under  s.  19 (2) of the Act which was  added  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,, 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 down 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 October 6, 1953, and this Court granted  special leave on April 19, 1954. 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  that  cl. (ii) of s. 16 applied and  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.  The provisions of s. 19 (2)  of the  Act  which gave the right to obtain relief  of  scaling down  notwithstanding  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 XXIII of 1948 ". The High Court observed that although the appellant had filed an additional  written statement  claiming  relief under the Burma  Debt  Laws,  no prayer  was  made for any relief under the  Act.   The  High Court said :- " A party who had an opportunity to raise a plea but did not raise  the Plea is precluded by principles of  res  judicata from raising the plea over again at a subsequent stage.  But it  is  said  that  the principle of  res  judicata  has  no application  to the present case as section 19 (1) which  is incorporated  by  reference in section 19 (2)  says  that  a petitioner  would  be entitled to the relief  given  to  him under that section 244 ,order has been passed, or in which the decree or order  has not become final, before such commencement; (iii)     all  suits and proceedings in which the decree  or order  passed has not been executed or satisfied  in  ,,full before  the  commencement  of this  Act:  Provided  that  no creditor shall be required to refund any sum which has  been paid  to or realised by him before the commencement of  this Act ". Unfortunately,  the language of s. 16 is not very clear  and lends  itself to difficulties of interpretation.   We  agree with the High Court that s. 16 of the amending Act  controls the  amendments  made by that Act in the  sense  that  those amendments  apply to the suits and proceedings described  in the  three clauses of s. 16.  Sub-section (2) of s.  19  was one  of the amendments which was inserted by  the  ammending Act  and therefore the appellant-debtor must establish  that be is entitled to relief under sub-s. (2) of s. 19,  because his case 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 he did not do so,  he  was barred from claiming relief under s. 19(2) on the  principle of res judicata.  We do not think that this view is  correct and our reasons are the following.

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The three clauses of s. 16 are independent of each other and cl. (1) refers to suits and proceedings instituted after the commencement  of the amending Act, the relevant  date  being January  25,  1949.  Clause (1) 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 January  25, 1949: this means that though a final decree  or order  for  repayment of the debt, had  been  passed  before January  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 245 that  the word I debt’ in the Act has a  very  comprehensive 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,  therefore,  clear that the word I debt’ includes a decretal debt.  On the view that  cl.  (iii) applies in those cases only where  a  final decree  or  order for repayment of the debt  had  been  made before  January  25,  1949, it has no  application.  in  the present  case; because the decree for repayment of the  debt was  passed on March 9, 1951 - which was after  January  25, 1949. We  then  go to el. (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 common element is  that  el.  (ii) refers  to suits and proceedings 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  January  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 el. (ii) arose in the  present  case and  the appellant-debtor was entitled to avail  himself  of all  or  any  of the amendments made 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  dismissal passed in the suit had not become final on January 25, 1949, for  an  appeal  was  then pending.   We  do  not  think  it necessary  to  consider the alternative argument  of  learnd 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 el. (ii) must mean decree  or order  for repayment of a debt.  What then is  the  position before 248 passed,  but  did not do so.  The legislature may  not  have realised that this would be so; but as the amendments stand, it  is clear that in cases covered by cl. (ii) of s.  16  of the  amending  Act, a party is entitled to  ask  for  relief under  the Act at two stages, before a decree for  repayment of the debt has been passed and also after such a decree has been passed.  Different considerations 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,

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even  after such refusal, makes a second  application,  then the   principle   laid  down  in   Narayanan   Chettiar   v. Rathinaswami  Padayachi  (1),  will  apply  and  the  second application must fail on the ground that it has already been decided  in  his  presence that he is not  entitled  to  any relief under the Act. One  other point has to be referred to in  this  connection. On behalf of the respondent-creditor it has been pointed out to  as that on the date the application for relief under  s. 19(2) was made in the High Court, no suit or proceeding  was actually pending, the High Court having passed a decree much earlier, namely, on March 9, 1951.  Asa matter of fact,  the application  for relief under s. 19(2) for scaling down  the decree was made 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 amendments shall apply and the  pendency of a suit or proceeding on a  particular  date after January 25, 1949, is not the true test.  The true test is  whether  the suit or proceeding  was  instituted  before January 25, 1949, 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, el. (ii) of s. 16 of the amending Act did  not stand  in the way of the appellant when he asked for  relief under s. 19(2) of the Act. We  now turn to such authorities as have been placed  before us.   The  authorities  are  not  all  consistent,  and  the language of cls. (ii) and (iii) of s. 16 of the amending (1)  A.I.R. 1953 Mad. 421. 245 that  the word I debt’ in the Act has a  very  comprehensive 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, A, therefore,  clear that the word I debt’ includes a decretal debt.  On the view that  cl.  (iii) applies in those cases only where  a  final decree  or  order for repayment of the debt  had  been  made before  January  25,  1949, it has  no  application  in  the present  case; because the decree for repayment of the  debt was passed on March 9, 1951, which was after January 25, 1949. 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 common element is  that  cl.  (ii) refers  to suits and proceedings 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  January  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) arose in the  present  case and  the appellant-debtor was entitled to avail  himself  of all  or  any  of the amendments made 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  dismissal passed in the suit had not become final on January 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

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having regard to the other provisions of the Act, the  words "  decree or order occurring in cl. (ii) must I mean  decree or order for repayment of a debt.  What then is the position before 248 passed,  but did not do So.  The legislature ’may  not  have realized that this would be so; but as the amendments stand, it.  is clear that in cases covered by cl. (ii) of a. 16  of the  amending Act, a party is entitled to ask  ,,for  relief under  the Act at two stages, before a decree for  repayment of the debt has been passed and also after such a decree has been passed.  Different considerations 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 such refusal, makes a second  application,  then the   principle   laid  down  in   Narayanan   Chettiar   v. Rathinaswami  Padayachi  (1),  *ill  apply  and  the  second application must fail on the ground that it has already been decided  in  his  presence that he is not  entitled  to  any relief under the Act. One  other point has to be referred to in  this  connection. On behalf of the respondent-creditor it has been pointed out to. as that on the date the application for relief under  s. 19(2) was made in the High Court, no suit or proceeding  was actually pending, the High Court having passed a decree much earlier, namely, on March 9, 1951.  As a matter of fact, the application  for relief under s. 19(2) for scaling down  the decree was made in the High Court some time in 1952.  We are of  the view that el. (ii) of s. 16 describes the nature  of suits or proceedings in which the amendments shall apply and the  pendency of a suit or proceeding on a  particular  date after January 25, 1949, is not the true test.  The true test is  whether  the suit or proceeding  was  instituted  before January 25, 1949, 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  tile present case, cl. (ii) of s. 16 of the amending Act did  not stand  in the way of the appellant when he asked for  relief under s. 19(2) of the Act. We  now turn to such authorities as have been placed  before us.   The  authorities  are  not  all  consistent,  and  the language of cls. (ii) and (iii) of S. 16 of the amending (1)  A.I.R. 1953 Mad. 421. 249 Act  has perhaps led to some of the difficulties  of  inter- pretation  referred  to  therein.   The  earliest   decision brought   to  our  notice  is  the  decision   in   Velagala Sriramareddi and others v. Karri Sriramareddi (1).  This  is a full bench decision of the Madras High Court. to which  we have  already referred in an earlier part of this  judgment. The next decision is that of Venkataratnam v. Sesharma  (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  Court  with regard to cl. (iii) of s.  16.   The  view expressed in the earlier cases, to which the learned  Judges who  decided  the case out of which the present  appeal  has arisen  were  parties, was that el. (iii) of s.  16  had  no application  to proceedings in which the decrees and  orders had  become final before January 25, 1949.  The  Full  Bench did not accept that view as correct.  Satyanarayana Rao, J., who delivered the judgment of the Court said: ,It  cannot be doubted that the two clauses (ii)  and  (iii)

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are  entirely  independent and are intended to  provide  for different situations......... "The  view  taken  by  the  learned  Judges  in  the   Civil Miscellaneous Appeals, already referred to, was that,  while the  two  clauses  are  independent,  clause  (iii)  has  no application  to proceedings in which the decrees and  orders have become final before the commencement of the Act.  It is this view which is also pressed now before us by the learned Advocate  for  the  respondent.  While  we  agree  with  the learned   Judges  in  holding  that  the  two  clauses   are independent,  we are 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  and as such the case would be covered  by  clause (ii).  Further, it would be difficult to imagine (1)  I.L R. [1042] Mad. 346. 32 (2) I.L.R. [1952] Mad. 402, 498. 499. 250 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  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  reopened  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 Act.  If,  however,  a decree  was  executed  in  part and,  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 situation, 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 question  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 grive 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  reopened.  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  before 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 251 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)

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applies  to  suits  and proceedings  which  were  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 no  opinion thereon.  In Kanakammal v. Muhammad Kathija Beevi (1) it was observed: " The mere fact that the judgment-debtor raised an objection to the executability of the whole decree on the ground  that it  has to be scaled down is no ground for scaling 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.  We 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, successive applications under s. 19 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   the prescribed time from the date of the stay order under s.  20 passed  on  his prior application was precluded  from  again filing another application under s. 20 followed by an appli- cation  under  s.  19.   It was held  that  he  was  not  so entitled.  In Jagannatham Chetty v. Parthasarathy (1) A.I.R. 1953 Mad. 188, 189. (2) A.I.R. 1953 Mad. 421. 252 Iyengar(1)  the  question  as to the  meaning  of  the  word proceedings’  in s. 16 ",as considered and it  was  observed that  the  word  I  proceedings’  ins.  16  must  relate  to proceedings  instituted for repayment of a debt and  not  to execution proceedings which are for enforcement of a  decree or order.  We greatly doubt whether that is the correct view to take, particularly when the expression ’debt’ includes  a decretal  debt;  but as the question does Dot arise  in  the present case we refrain from making any final pronouncement. In Hemavathi v. Padmavathi (2) 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 decree or order of a court,  provided that  the  decree or order had not been  executed  or  fully satisfied.   That was held to be the effect of el. (iii)  of s.  16  of  the  amending  Act.   In  Lingappa  Chettiar  v. Chinnaswami  Naidu  (3),  the view taken by  Subba  Rao  and Somasundaram,  JJ. (the same Judges who decided the  present case)  in  an  earlier  decision that a  party  who  had  an opportunity of getting the beneficent provisions 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, ",as dissented from and Govinda  Menon, -J., who gave the judgment of the Court, said: "  We 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-section as contemplated

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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 (4) Krishnaswami  Nayudu, 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 commencement of the amending 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. i, 5. (2)  I.L.R. [1954] Mad. 89i. (4)  (1955) i M.L.J. 215. 253 not  been executed or satisfied and so loin(,  as  something remains to be done out of the decree, the Act could be  made applicable.   It  seems  to us that both  on  authority  and principle,  the  correct  view is that  the  appeallant  was entitled  to the benefit of s. 19(2) of the Act,, read  with s. 16, cl. (ii) of the amending Act. 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  accordance  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 be claimed.  One AN-as 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  alone  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 appellant is a matter  on which  we  are making no pronouncement.  That  is  a  matter which will be dealt with by the High Court.               Appeal allowed.  Case remanded. 254