Audhavarapu Ramamurti vs Ratuala Kulamani

Meredith, J.—This is an appeal by the decree-holders against an order of the learned Subordinate Judge, Berhampore, allowing an application by the judgment-debtors u/s 19, Madras Agriculturists'' Relief Article (4 of 1938) and scaling down the decree. The appellants obtained, on 19th November 1928, a final decree for a sum of Rs. 12,349-10-11 in the Court of the Subordinate Judge, Berhampore, in a suit upon a mortgage. The mortgaged property was situated within the province of Madras, and has remained within the province of Madras after the formation of the province of Orissa. The learned Subordinate Judge allowed the application and reduced the amount of the decree to Rs. 3259-15-0 plus Rs. 884-1-0 for costs, by his order, dated 12th October 1938, which was passed in Execution Petition No. 2 of 1937 filed on 21st January 1937, and is the order under appeal.

The point taken for the appellants is that the Madras Agriculturists'' Relief Act has no extra-territorial application, and as the Subordinate Judge, Berhampore, is now a Court within the province of Orissa he had no jurisdiction to entertain this application under an Act applying purely to the province of Madras. In my opinion, this contention must succeed. Section 2 of the Act in question says: "It extends to the whole of the province of Madras." Section 19 is as follows:

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 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 respect of any such decree shall first be applied in payment of all costs as originally decreed to the creditor.

This section clearly contemplates an application to the Court which passed the decree, but in saying that a Court which has passed a decree for the repayment of a debt shall do so and so the Act must be taken to mean a Court of the province of Madras which has passed a decree, because it is plainly not open to the Provincial Government of Madras to pass an enactment to prescribe the procedure of the Courts of another province. This was the view taken by Sir Trevor Harries, then Chief Justice of the Patna High Court, in a similar application heard by him and decided on 20th September 1940: Civil Revision No. 50 of 1939. There an application was made for revision of an order of the Subordinate Judge of Cuttack, dismissing an application by a judgment-debtor u/s 19, Madras Agriculturists'' Relief Act.

The learned Chief Justice said: "The only point in this case is whether a Court in Orissa is bound to give effect to the provisions of a Madras Act." He went on to say that the contention could not be accepted. It seemed to him clear that one province cannot possibly legislate and insist that its laws be enforced in another province. "The Courts of a province," he said, "enforce law applicable to India generally and the law applicable to their province. They do not and cannot enforce law applicable to aprovince other than their own. In the present case the judgment-debtor is not entitled in this province to ask a Court governed by Orissa law to give him relief under some law in Madras. He can ask a Madras Court to do so, but a Court, at Cuttack cannot recognise the laws of a province other than jOrissa." I entirely agree with this reasoning, and it [seems to me clear that Section 19 of the Act has no application to Courts in Orissa and does not and cannot give them power to amend their decrees, on the ground Jin question. It follows, therefore, that the application u/s 19 by the judgment-debtors should have been rejected by the learned Subordinate Judge as not being maintainable by him.

It has been suggested on the basis of some Madras decisions that an order u/s 19 of the Act is not appealable. It is unnecessary to pronounce any opinion upon this question, because if it is not appealable the case is clearly one for interference in revision, as it involves the exercise by a Court of a jurisdiction which it did not possess. Secondly, it is urged for the respondents that since the application for execution in question was not pending on 1st April 1936, when the province of Orissa was constituted, the Berhampore Court had no jurisdiction to entertain the application for execution and should have rejected the petition of the decree-holders in the first instance. It is, in my opinion, unnecessary to express any opinion upon this point, which is not before us and which is, in my view, irrelevant to the present appeal. Petitions u/s 19, Madras Agriculturists'' Relief Act, are independent proceedings in execution. It has been so held by Full Bench of the Madras High Court in A.S. Nagappa Chettiar and Another Vs. Annapoorani Achi alias Karuppayi Achi and Another, . an also by a Division Bench of that Court in Vysaraju Appala Narasimha Raju Vs. Brundavanasahu (died) and Others, . The application u/s 19 being an independent proceeding, it is clear that the question whether the execution petition was maintainable or not is irrelevant in the present appeal.

It is, of course, open to the judgment-debtors, if so advised, to make an application before the lower Court, objecting to the execution on the ground put forward, but it is not for this Court at this stage to pronounce any opinion upon that question. In the circumstances I would allow this appeal, and set aside the order of the learned Subordinate Judge scaling down the decree, but I would make no order for costs.

Chatterji J.

I agree, and I only wish to add that having regard to the clear provision of Section 2, Madras Agriculturists'' Relief Act, no provision of that Act is applicable to any Court situated outside the province of Madras.