Athiyappa Goundan vs Ramanathan Chettiar

Kunhi Raman, J.—This is an application to revise the order made by the learned Subordinate Judge of Salem in E.A. No. 261 of 1938 in

O.S. No. 52 of 1932.

The application before the lower Court was presented u/s 19 of the Madras Agriculturists'' Relief Act IV of 1938 to scale down the amount of a

mortgage decree. It is admitted that the original mortgage was executed for Rs. 7,000 on the 4th November, 1914, the whole of the mortgage-

debt being the price payable by the mortgagors for lands purchased by them from the mortgagees. Subsequent to this mortgage and before the

debt was discharged, there was a partition among the mortgagors and after that partition, by consent of parties, the mortgage-debt was split up

with the result that under a fresh mortgage deed, Ex. C, security was given only for Rs. 2,500 which was the portion of the debt that fell to the

mortgagors under that document. This was executed on the 22nd January, 1925. Under this mortgage deed, the properties that were given as

security were not the lands that were originally purchased in 1914 but some of the ancestral properties of the mortgagors under this deed. The

decree debt that was sought to be scaled down u/s 19 of the Act was under the decree passed Jo enforce this mortgage.

The application for scaling down was resisted in the Court below u/s 10, Sub-section 2, Clause 2 of the Act by the decree-holders. According

to this clause, nothing contained in Sections 8 and 9 of the Act shall affect any liability for which a charge is provided u/s 55, Clause 4, Sub-clause

(b) of the Transfer of Property Act. The objection raised on behalf of the decree-holders was upheld by the learned Subordinate Judge who found

that the exemption provided for in this clause clearly indicated that the Act was not intended to benefit debtors whose debts could be under the

category of debts referred to in it.

Mr. Ramakrishna Aiyar, the learned Advocate for the Petitioner, argues that since under the fresh mortgage deed, Ex. C, the lands originally

purchased by the mortgagors, in respect of which alone the charge provided for in Section 55 of the Transfer of Property Act can operate were

not given as security and since fresh properties were given as security, the lower Court erred in holding that the clause of Section 10 relied on by

the respondents was applicable to the case. In view of the scheme of the Act and in view of the wording of the clause, I am not able to accept this

contention as well-founded. The clause describes a particular category of debts in respect of which the debtor should not be given relief under the

Act and it cannot be denied that the debt in the present case is included in that category. It is only equitable that a person who purchases property

should pay the price that he agreed to pay. In these circumstances, I hold that the view taken by the Court below that the clause is a sufficient

answer to the petition for scaling down the debt is correct. The Civil Revision Petition must therefore be dismissed with costs.