17 October 1950
Supreme Court
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SRI RANGA NILAYAM RAMA KRISHNA RAO Vs KANDOKORI CHELLAYAMMA alias MANGAMMA AND ANOTHER

Case number: Appeal (civil) 56-57 of 1949


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PETITIONER: SRI RANGA NILAYAM RAMA KRISHNA RAO

       Vs.

RESPONDENT: KANDOKORI CHELLAYAMMA alias MANGAMMA AND ANOTHER

DATE OF JUDGMENT: 17/10/1950

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA

CITATION:  1953 AIR  425            1950 SCR  806  CITATOR INFO :  R          1989 SC2113  (7)

ACT:     Madras  Agriculturists’ Relief Act (IV of 1938),  ss.  3 (D),   8,   10,   19--Sale  of  estate   in   execution   of decree--Whether  owner ceases to be "Agriculturist"  pending application to set aside sale-Applications to set aside sale and  for relief  under Act’Maintainability-Order  confirming sale and granting relief--Legality--C.P.C. (1908), O.XXI, r. 90--Execution  sale--Appeal  against order refusing  to  set aside  sale--When  sale becomes absolute and  title  passes- Receiver--Appointment of receiver, effect of.

HEADNOTE:     In  execution of a decree obtained on a mortgage a  vil- lage owned by the mortgagor which was included in the  mort- gage  was sold by the court on the 6th July 1935 and it  was purhased  by the mortgagee. An application by the  mortgagor under 0 .XXI,.r. 90, C.P.C., for setting aside the sale  for irregulrities was dismissed, the sale was confirmed and full satisifiction  of the decree was recorded, on the 6th  March 1943.   A few days afterwards the mortgagor and his  adopted son  made an application under s. 19 of the Madras  Agricul- turists’ Relief Act, 1938, praying for relief under the Act, and,  as this application also was dismissed they  preferred two appeals, one from the order dismissing this  application and  the other against the order of 6th March 1943  refusing to set aside the sale.  The High Court of Madras held  that, as  the  mortgagor’s village had been sold he did  not  come within the purview of el. (i)) of the proviso to 6. 3 of the Madras Agriculturists’ Relief Act and so he was entitled  to claim  relief  under the Act and the debt  stood  discharged under the provision of the Act, but the Bale was not  liable to  be set aside; and in accordance with this  judgment  the decree-holder  was directed to pay the amount for which  the property had been sold with interest thereon: ’    Held per FAZL ALl and MUKHERJEA JJ.--(i)that the conclu- sions  arrived at by the High Court were  self-contradictory because if the sale was effective on the date it was held or confirmed,  the decree was also satisfied on that  date  and the  judgementdebtors were no longer entitled to invoke  the

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provisions  of  the Act; (ii) that the High  Court  was  not justified in law in deciding the appeal on the footing  that the judgment-debtors ceased to be owners of the village from the date of sale and on that account were not hit by cl. (D) of the proviso to s. 3 of the Act inasmuch as when an appeal is  preferred from an order rejecting an  application  under O.XXI,  r. 90, C.P.C., to set aside an execution  sale,  the sale  does not become absolute until the matter  is  finally decided by the appellate court. 807     Per CHANDRASEKHARA AIYAR J.--After the execution sale in 1935 the only interest which the judgment-debtors had in the village  was to have the sale set aside under  the  relevant provisions  of the Civil Procedure Code and  this  interest, not  being an interest contemplated by s. 3 (ii) (a)  &  (b) and s. 19 (1) of the Act, they were not "agriculturists" and were not entitled to any relief under the Act.     Held also, per FAlL ALl and MUKHERJEA JJ.--A person does not cease to be a land holder of an estate within the  mean- ing  of  cl. (D) to the proviso to s. 3 of  the  Act  merely because the estate is placed in the hands of a receiver.     Bhawani  Kunwar v. Mathura Prasad Singh (I.L.R. 40  Cal. 89)  and Chandramani Shaha v. Anarjan Bibi (I.L.R.  61  Cal. 945) referred       Judgment of the Madras High Court reversed.

JUDGMENT: APPELLATE  JURISDICTION:  Civil Appeals Nos. 56  and  57  of 1949.  Appeals from the orders of the High Court of  Judica- ture  at Madras (Wadsworth and Patanjali Sastri JJ.)   dated 24th  October, 1945,  in A.A.O. Nos. 372 of 1943 and 634  of 1944  which were appeals from the orders of the  Subordinate Judge  of Ellore in E.A. No. 440 of 1937 and C.M.P. No.  152 of 1943 in O.S. No. 87 of 1923.     P.  Somasundaram  (V.  V. Choudhry, with  him)  for  the appellant.     V. Rangachari (K. Mangachari, with him) for the respond- ents.     1950.  October  17.   The Court  delivered  judgment  as follows.     FAZL  ALI J. --These appeals arise out of  an  execution proceeding, and the main point to be decided in them is what is  the effect of certain provisions of the Madras  Agricul- turists’  Relief  Act  (Madras Act IV of  1938,  which  will hereinafter  be  referred to as "the Madras  Act"),  on  the rights of the parties.  How this point arises will be  clear from a brief statement of the facts of the case.     It appears that in 1908, one Veeresalingam, the  husband of  the first respondent, borrowed a sum of Rs.  9,000  from one  Sitharamayya, and executed a mortgage bond in  his  fa- vour.  Subsequently a suit was 808 instituted  by the mortgagee to enforce the mortgage  and  a final  decree  in that suit was passed on the  19th  August, 1926.   Thereafter,  on the 28th October,  1931,the  decree- holder  applied for the execution of the decree by the  sale of  the  mortgaged  property.  In  193a,  the  decree-holder transferred the decree to one Sobhanadri, after whose  death his son, the appellant before us, was brought on the  record as  his legal representative in the  execution  proceedings. Several years before the assignment of the decree,  Veeresa- lingam,  the  defendant, had died and his widow,  the  first respondent. was therefore brought on the record as his legal

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representative.  On the 6th July, 1935, two items of proper- ty were sold in execution of the decree and purchased by the decree- holder, these being :---(1) a village called  Tedlam in  in West Godavari District; and (2) 4 acres and 64  cents of  land in Madepalli village.  The first property was  sold for  Rs. 21,000 and the second for’ Rs. 1,025. As,  however, the  amount due under the decree was only about  Rs.  17,860 and  odd, the sale of the second property  was  subsequently set  aside  and the decree-holder deposited into  Court  the excess amount  of  about Rs. 3,000 and odd after setting off the  decretal amount against the price of the first item  of property.   On  the 5th August, 1935, the  first  respondent filed  an application under Order XXI, rule 90, and  section 47  of  the Code of Civil Procedure, to set aside  the  sale held  in July, 1935, alleging certain irregularities in  the conduct  of  the sale.  That application was  after  several years heard by the Subordinate Judge of Ellore, who  by  his order  dated the 6th March, 1943, dismissed it and  directed the  sale  of the first property to be  confirmed  and  full satisfaction  of  the decree to be entered. After  about  12 days,  i.e., on the 18th March, 1943, the  first  respondent and  the  second  respondent, who had been  adopted  by  the former  on the 12th March, 1936, under the will of her  hus- band and was subsequently brought on record, filed an appli- cation  under section 19 of the Madras Act praying for  cer- tain reliefs under that Act. This application’ was dismissed on  the  22nd March, 1943.  Subsequently, two  appeals  were filed on behalf 809 of  the respondents (who will hereinafter be  sometimes  re- ferred to as judgment-debtors), one against the order refus- ing  to set aside the sale under Order XXI, rule 90  of  the Civil  Procedure Code, and the other against the order  dis- missing the application under the Madras Act.  These appeals were heard together by two learned Judges of the Madras High Court  and  they took the view  that  the  judgment-debtors’ application under the Madras Act was  maintainable  notwith- standing the fact that the sale had been confirmed and  full satisfaction  of the decree recorded, and remitted the  case to  the  trial Court  for  a  finding   on   the   following questions,  namely     (1) whether the applicants     were agriculturists; and     (2)  if  so, what would be the result  of  applying  the provisions  of  Madras Act IV of 1938 to the  decretal  debt against them ?     So far as regards the judgment-debtors’  appeal  against the order dismissing their application under Order XXI, rule 90, the Learned Judges were inclined to agree with the trial Court that the sale should stand but declined to pass  final orders in the appeal on the ground that "it would  seriously prejudice the judgment-debtors in the connected  application for relief under section 19 of the Madras Act IV of 1938."     The Subordinate  Judge  answered the questions  referred to him by the High Court on remand as follows :--     (1)  The  judgment-debtors were not  agriculturists  and were  not therefore entitled to the benefits of  the  Madras Act;and     (2) If they were agriculturists, they were not liable to pay anything under the decree, as, in view of the provisions of the Act, the debt stood discharged on the date of sale.     When  however  the  matter came up  before  the  learned Judges of the High Court, they reversed the first finding of the  trial  Court  and held that  the  judgmentdebtors  were agriculturists within the meaning of the 810

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Act, and that the debt stood discharged in view of section 8 (2)  of the Act.  At the same time, they held that the  sale was  not liable to be set aside, and in this view  dismissed one  of  the appeals and allowed the other.   Then  followed certain proceedings to which it would have been  unnecessary to  refer  but for the fact that the  judgment-debtors  have attempted  to rely on     "them in support of one  of  their preliminary  objections  to  the  maintainability  of  these appeals.      It  appears that on the next day after the judgment  of the  High  Court was delivered in the two  appeals,  counsel for  the respondents wrote a letter to the Registrar of  the High Court to direct the posting of the two cases ’for being mentioned’  before  the Court in order to  obtain  necessary directions  consequent  on the orders passed by  it  in  the appeals.   This  letter was not placed  before  the  learned Judges  until the judgment had been signed by them  and  ac- cordingly  the  judgment-debtors filed  two  petitions,  one being  a  review petition to the High Court  and  the  other being  a petition to the trial Court praying "that  the  de- creeholder  may  be ordered to pay to  the  petitioners  the purchase money of Rs. 21,000 with interest thereon at 6  per cent.  per  annum  from the date of sale till  the  date  of payment."  The trial Court dismissed the latter petition  on the  ground that it was not maintainable, and the  judgment- debtors  filed an appeal against the order.  The  appeal  as well  as  the review petition of the  judgment-debtors  were heard  together   by  the learned Judges  who  directed  the decree-holder’s  counsel to elect whether his  client  would deposit  the purchase money into Court or have the sale  set aside.   The decree-holder applied for a  short  adjournment and  ultimately  on  the 15th November,  1946,  his  counsel stated  that his client wished to retain the property  which he had purchased and to pay the purchase  money into  Court. Thereupon,  he  was directed to pay the sum  of  Rs.  21,000 together with interest within a months from that date.       Subsequently,  the  appellant  (decree-holder)  having obtained leave to appeal from the High Court preferred       811 these  appeals before us.  It may be stated here that  along with the application for leave to appeal, the appellant  had filed  an application for excusing the  delay in filing  the former  application which he accounted for mainly by  refer- ring to the proceedings for the  review of the judgments  in the  previous appeals to the  High Court.  This  application was granted and the delay was condoned.     As  has been already stated, the main point  arising  in these  appeals relates to the effect of the Madras Act  upon this  litigation.  That Act was passed and came into  effect in 1938, while the execution proceedings were still continu- ing.   It will be recalled that the sale took place  on  the 6th July, 1935; and the application for setting it aside was not  disposed of until the 6th March, 1943.  But,  strangely enough,  the  judgmentdebtors did not apply for  any  relief under the Madras Act during this period, and they made their application  only  after  the sale had  been  confirmed  and satisfaction  of the decree had been entered.  How far  this belated  application affects the right claimed by the  judg- ment-debtors under the Act is one of the questions raised in these  appeals, and I shall deal with it after referring  to the  material provisions of the Act and the findings of  the High  Court  which  have given  rise  to  several  debatable points.     The  sections  of  the Act which are  material  for  the purpose of these appeals are sections 3, 8 and 19. Section 3

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defines  an agriculturist and has a proviso stating that  in certain cases a person shall not be deemed to be an agricul- turist.   The  relevant clause of this proviso, to  which  I shall  also have to advert later, is clause (D)  which  runs thus :--     "Provided  that  a person shall not be deemed to  be  an ’agriculturist’ if he-     (D)  is a landholder of an estate under the  Madras  Es- tates  Land Act, 1908, or of a share or portion  thereof  in respect of which estate, share or portion any sum  exceeding Rs. 500 is paid as peshkash or any sum exceeding Rs. 100  is paid as quit-rent, jodi, kattubadi, 812 poruppu or the like or is a janmi under the Malabar  Tenancy Act, 1929, who pays any sum exceeding Rs. 500 as land  reve- nue to the Provincial Government. ’ ’     The precise question which is said to arise with  refer- ence  to  this provision is whether by reason of  being  the owners  of  village Tedlam, the judgment-debtors  should  be held  to be not entitled to relief under the Act. The  other material sections 8 and 19 run as follows :--     "8.  Debts incurred before the 1st October, 1932,  shall be scaled down in the manner mentioned hereunder, namely:-     (1)  All interest outstanding on the 1st October,  1937, in  favour of any creditor of an agriculturist  whether  the same  be  payable under law, custom or contract or  under  a decree of Court and whether the debt or other obligation has ripened  into  a decree or not, shall be deemed to  be  dis- charged,  and only the principal or such portion thereof  as may  be outstanding shall be deemed to be the amount  repay- able by the agriculturist on that date.     (2)  Where  an agriculturist has paid  to  any  creditor twice the amount of the principal whether by way of  princi- pal or interest or both, such debt including the  principal, shall be deemed to be wholly discharged.     (3) Where the sums repaid by way of principal or  inter- est or both fall short of twice the amount of the principal, such  amount  only as would make up this  shortage,  or  the principal amount or such portion of the principal amount  as is outstanding, whichever is smaller, shall be repayable.     (4)  Subject  to the provisions of sections  22  to  25, nothing contained in sub-sections (1), (2) and (8) shall  be deemed  to require the creditor to refund any sum which  has been paid- to him, or to increase the liability of a  debtor to pay any sum in excess of the amount which would have been payable by him if this Act had not been passed. 813     Explanation.--Where a debt has been renewed or  included in  a  fresh document in favour of the  same  creditor,  the principal  originally advanced by the creditor together with such  sums,  if any, as have been subsequently  advanced  as principal shall alone be treated as the principal sum repay- able by the agriculturist under this section.     19. 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 judgmentdebtor who is an  agricul- turist  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  the  decree- holder, apply the provisions of this Act to such decree  and shall,  notwithstanding  anything contained in the  Code  of Civil Procedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be:     Provided  that all payments made or  amounts  recovered, whether  before  or after the commencement of this  Act,  in

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respect of any such decree shall first be applied in payment of all costs as originally decreed to the creditor."     These sections are material, because in the present case the  judgment debtors asked the decree to be  amended  under section  19 of the Act and they were held to be entitled  to relief under section 8.     Having  referred to the relevant provisions of the  Act, it  becomes necessary now to state the main findings of  the High Court upon which the decision of this appeal will turn. These findings are-     (1)  that the sale of Tedlam village, which was held  on the  6th July, 1935, and confirmed on the 6th March,  19-13, was a good sale;     (2) that by this sale. the title to the Tedlain  village passed  to the decree-hoMer. and in hearing the  appeal  the High  Court was justified in proceeding on the footing  that the  judgment-debtors  having  ceased to be  the  owners  of Tedlam village after its sale, were not 104 814    hit by clause (D) of the proviso to section a of the Act; and (3)  that the decree had been satisfied at the date  of  the sale and the decree-holder was liable to repay to the  judg- ment-debtors the full price of the property which was  sold.     The  main contentions directed against  the  conclusions arrived  at  by the High Court are :firstly, that  they  are self-contradictory,  because  if the sale was  an  effective sale  on the date it was held or confirmed, the  decree  was also satisfied on that date and the judgmentdebtors were  no longer entitled to invoke the provisions of the Madras  Act; and  secondly, that the view taken by the learned Judges  of the  High Court that notwithstanding the appeal against  the order  refusing to set aside the sale they could proceed  on the  footing that the judgment-debtors had ceased to be  the owners  of Tedlarn village on the date of the sale  was  un- sound in law. It will first deal with the second point which appears to me to require serious consideration.  The High Court has in  my opinion rightly proceeded on the footing that the  ownership of  Tedlam village would bring the judgment-debtors   within the  mischief of clause (D) of the proviso to section  3  of the Act, and would disentitle them to any relief thereunder. This view was contested before us on behalf of the judgment- debtors  on two grounds :---(1) that the grant in favour  of the  ancestor  of the judgment-debtors did  not  comprise  a whole inam village and what they owned was therefore not  an estate  under the Madras Estates Land Act (Madras Act  I  of 1908);  (2) that on the date of the  application, the  judg- ment-debtxrs were not landholders of village Tedlam  because the  village was in the possession of a receiver  since  1st February, 1937, and the latter was in law the landholder  on the crucial date. None of these contentions however  appears to me to have any force.  The first contention was sought to be supported by Exhibit P-1 which is a register of inams and which  shows that poramboke or waste lands to the extent  of 596 acres had to be deducted from the area 815 of  the  inam.  The point however has been dealt  with  very fully and clearly by the learned Subordinate Judge, who  has rightly  pointed  out that it has no force in  view  of  the Madras Estates Land (Amendment) Act, 1945 [Madras Act No. II of  1945].  The second point is equally  unsubstantial,  be- cause  it is well settled that the owner of a property  does not cease to be its owner merely because it is placed in the

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hands of a receiver. The true position is that the  receiver represents  the real owner whoever he may be, and  the  true owner  does not by the mere appointment of a receiver  cease to be a landholder under the Madras Estates Land Act.     I  will now revert to the crucial question in the  case, viz.,  whether  the learned Judges of the  High  Court  were justified in law in deciding the appeal on the footing  that the judgment-debtors had ceased to be the owners of  Tedlain village and on that account they were not hit by clause (D). of  the  proviso to section 3 of the Madras  Act.   At  this stage,  it will be useful to refer to certain provisions  of the Civil Procedure Code which directly bear on the question as  to  when title to immovable property which  is  sold  in execution  of a decree is deemed to pass to  the  purchaser. One of the provisions is Order XXI, rule 92, which  provides that "where no application is made under rule 89, rule 90 or rule  91, or where such application is made and  disallowed, the  Court  shall  make an order confirming  the  sale,  and thereupon the sale shall become absolute." The second  rele- vant provision is section 65 which runs thus :--     "Where  immovable  property is sold in  execution  of  a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the  property  is sold and not from the time when  the  sale becomes absolute."     In  Bhawani Kunwar v. Mathurn Prasad Singh(1) the  ques- tion  as to when a mortgagee who has purchased certain  vil- lages  in  execution  of the decree acquired  title  to  the properties  purchased by him directly arose  for  considera- tion, and the Privy Council rightly pointed (1) T.L.R. 40 Cal. 89. 816 out that "the sale in execution of the mortgage decree  took effect  from  the actual date of the sale and not  from  its confirmation."  In a simple case, the provisions cited above should settle the controversy, but, in the present case, the matter has been complicated on account of the appeal against the  order refusing to set aside the sale under  Order  XXI, rule  90.   In  such a case, generally  speaking,  the  true position  seems  to be that there is no finality  until  the litigation  is  finally determined by the  appellate  Court. This principle has been recognized in a number of cases, but it  will  be  enough to cite Chandramani  Shaha  v.  Anarjan Bibi(1).  The headnote of that case runs as follows :--      "Where  a Subordinate Judge has disallowed an  applica- tion under Order XXI, rule 90, to set aside a sale in execu- tion,  and has made an order under rule (1)  confirming  the sale, and an appeal from disallowance has been dismissed  by the  High  Court, the three years’ period  provided  by  the Indian Limitation Act, 1908, Schedule I, article 180, for an application  under Order XXI, rule 95. by the purchaser  for delivery  of possession runs from the date of the  order  on appeal; the High Court having under the Code of Civil Proce- dure,  1908, the same powers as the Subordinate  Judge,  the ’time  when the sale becomes absolute’, for the  purpose  of article 180 is when the High Court disposes of the appeal."      Under  article  180 of the Indian Limitation  Act,  the period  of  limitation  runs "from the date  when  the  sale becomes  absolute." If we give a narrow and literal  meaning to  these words, the period of limitation should be held  to run  from  the  date when the original  Court  of  execution confirms  the  sale.  But, as was pointed out by  the  Privy Council,  the High Court as an appellate Court had the  same powers as the trial Court and it is only when the appeal was dismissed  by  the High Court that the order  of  the  trial

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Court  confirming the sale became absolute.  Till the  deci- sion of the appellate Court, no finality was attached to the order confirming the sale. (1) I.L.R. 61 Cal. g45. 817     It is clear that in this case the same rule would  apply to the order recording satisfaction of the decree and to the order confirming the sale.  If the order recording satisfac- tion  of the decree was not final and remained  an  inchoate order  until  the appeal was decided, the  order  confirming the  sale  would  have the same  inchoate  character.   This position seems to have been fully conceded in the  statement of  their  case filed on behalf of the respondents  in  this Court.     It  is quite clear that in this case the learned  Judges of  the High  Court have taken up an inconsistent  position. As I have already stated, they have held, for the purpose of allowing one of the appeals, that the judgment-debtors  were not hit by clause (D)of the proviso to section 3 of the  Act because  they ceased to be the owners of Tedlain village  at the  date of the sale in 1935.  If this conclusion  is  cor- rect,  it must follow as a matter of logic that  the  decree was  completely satisfied on the date of the  sale,  because the sale fetched a larger amount than what was payable under the  decree and the excess amount was deposited by  the  de- cree-holder  in  Court.  The sale and satisfaction  must  go together  and if finality is to be attached to the  sale  it should have been held to attach also to the order  recording satisfaction of the decree. It seems clear to me that if the decree  had ceased to exist, no relief could be  claimed  by the  judgment-debtors  under the Madras Act.  On  the  other hand,  if the appeal had to be decided on the  footing  that the  order  recording  satisfaction of the  decree  was  not final, the same approach should have been made in regard  to the effect of the sale.  It is also clear that if the decree was satisfied on the date of sale by the application of  the provisions of the Act, the sale could not stand, because how could  the property be sold in execution of a  decree  which had  been already satisfied. Yet, notwithstanding  the  fact that  nothing was due under the decree, the High  Court  has held  that the sale was a good sale and was to  stand.   The correct  approach to the case would have been to assume  for the purpose of the appeals that neither of the orders passed by the 818   Subordinate Judge was  final.  On that view, the   appeals to  the  High- Court could not have been  decided    on  the footing  that  the  judgment-debtors had ceased  to  be  the owners  of Tedlain property and were therefore  not  hit  by clause  (D) of the proviso to section 3 of the  Madras  Act. In  my  opinion, the judgment of the  High Court  cannot  be sustained, and the appeal s will   have to be allowed.   I will now deal very briefly with two preliminary   objec- tions raised on behalf of the respondents. The  first objec- tion  is  that the application for leave to  appeal  to  his Majesty in Council against the order of  the High Court  was barred by limitation, inasmuch as  the reasons stated in the affidavit  filed by the appellant in the High Court in  sup- port  of his application  for excusing delay do not  consti- tute  sufficient reason  within the meaning of section 5  of the  Limitation Act.  The answer to this objection  will  be found  in the facts  which have been already narrated.   The delay  was   caused mainly by reason of the  review  of  the order of  the High Court and the High Court considered  that there  as sufficient reason for condoning the  delay.   This

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Court cannot override the discretion exercised by  the  High Court  and the matter cannot be reopened in  these  appeals. The second objection is based on the  fact that the  decree- holder was given a choice by the  High Court to elect wheth- er he would deposit the  purchase money or have the sale set aside, and his  counsel told the learned Judges on the  15th November, 1946 that his client wished to retain the property which he had purchased and pay the purchase money  in  cash. It  is contended that in view of this statement it  was  not open  to the appellant to contend that he need not  pay  any amount  to  the judgment-debtors.  This  objection  also  is entirely devoid of any substance,because there is nothing on record to show that the appellant has consented to be  bound by  the  order  of the High Court and waived  his  right  to appeal against it by reason of the election. The learned counsel for the respondents also contended  that the sale should have been set aside by the 819 High Court because the permission given to the  decreeholder on the 16th February, 1934, to bid and set off the  decretal amount against the purchase price was confined to an earlier sale and did not extend to the sate which took place on  the 16th  March,  1935,  after the upset price  which  had  been originally fixed  was reduced.  Personally, I am inclined to hold  that the permission covered the sale in question,  but in any case it is difficult to hold on the facts stated that there  was any such material irregularity as  would  vitiate the  sale.  The precise argument which is put  forward  here was advanced in the Courts below but it did not find  favour either  with the Subordinate Judge or with the  High  Court. Besides,  the  respondents cannot raise the point  in  these appeals because they have filed no appeal against the  order of the High Court upholding the sale.     In  these circumstances, I would allow the appeals,  set aside the orders of the High Court and restore the order  of the  learned  Subordinate Judge.  There will however  be  no order as to costs in these appeals.     MUKHERJEA  J.--I concur in the judgment just now  deliv- ered  by  ray  learned brother, Fazl Ali J.,  and  there  is nothing further which I can usefully add.      CHANDRASEKHARA AIYAR J.--The facts which have cha given rise   to these appeals and the questions for decision  have been  stated  in  the judgment just  now  pronounced  by  my learned  brother Fazl Ali J. I wish to add only a few  words on  the  main contention advanced for  the   respondents  by their  learned Advocate, Mr. V. Rangachari.     If  by reason of the confirmation of sale and  satisfac- tion of the decree having been entered up, the title to  the village  had passed indefeasibly to the decreeholder,  there was  no longer any decree or decree debt to be scaled  down. If,  however, the title did not pass, because it  was  still open to the respondents to attack the Court sale under Order XXI,  rule 90, they were landholders of the village and,  as such, they would 820 come  within  the scope of proviso (D) to section 3  of  the Madras Agriculturists’ Relief Act, 1938, which enacts that a landholder  who holds a village paying more than Rs. 100  as quit rent or jodi is not an agriculturist within the meaning of the Act.     The apparent inconsistency in the view taken by the High Court was recognised, if not conceded, by the learned  coun- sel. In one view, there ,,as no longer any decree in respect of  which the Agriculturists’ Relief Act could operate;  and in the other view, the respondents could not take  advantage

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of  the  Act, as their ownership of  the  village  precluded them. Faced with this dilemma, Mr. Rangachari urged a  some- what ingenious argument. He contended that though the. title passed to the decree-holder on the confirmation of sale  and became  vested in him from the date of the sale, the  respo- dents  could still be regarded as having an interest in  the village, as the sale was open or liable to challenge and the title’of the decree-holder was inchoate or incomplete. There is, however, really no support for this position. On confir- mation,  the title of the decree-holder became  absolute  or complete.  If the sale was set aside, the title would revest in  the judgment-debtor. There is nothing like an  equitable title  in  the decree-holder which could be  recognised  for certain purposes and not recognised for others.     Under  the Madras Act, "agriculturist" means  "a  person who has a saleable interest in any agricultural or horticul- tural  land or one who holds interest in such land  under  a landholder as a tenant, ryot or undertenure-holder." Section 10,  sub-clause  (i)  of the Act -provides  that  the  right conferred  on  an agriculturist to have a debt  scaled  down will not apply to any person who, though an  "agriculturist" as defined in the Act, did not on 1-10-1937 hold an interest in  or a lease or sub-lease of any land.  After the sale  in 1935,  the only interest which the judgment-debtors  had  in the village was to have the sale set aside, under the  rele- vant  provisions of the Civil Procedure Code. This  interest is  not the interest contemplated by section  3,  sub-clause (ii) (a) & (b) of the Act which speaks of a 821 saleable interest or interest as a tenant, ryot or underten- ure holder.      I agree in the conclusion reached by my learned  broth- er.                      Appeals allowed.       Agent for the appellant: M.S. Krishnamoorthi Sastri.       Agent for the respondents: M.S.K. Aiyangar.