Kanakammal vs Muhammad Kathija Beevi

Govinda Menon, J.—In execution of the compromise decree passed in the appellate Court in O. S. No. 49 of 1923 on 13th November

1931 certain properties were sold on 6th December 1939. The appellant who is the decree-holder filed another application for execution and in

that the judgment-debtor raised the objection that the application was barred by res judicata. In -- ''C.M.S.A. No. 177 of 1944'' Bell J. held that

the execution application was not barred by limitation. While this appeal was pending, the present respondent filed an application u/s 19 of the

Madras Agriculturists Relief Act for scaling down the decree and both the lower courts held that the decree has to be scaled down. When the

matter came up to this court in C. H. S. A. No. 243 of 1946 our learned brother Subba Rao J. held that the objection taken by the decree-holder

that the judgment-debtor should have applied for sealing down the decree when the earlier application was pending cannot be maintained and

therefore held that the judgment-debtor is entitled to scaling down and the learned Judge granted leave to appeal.

The question raised is one of the res judicata in execution namely whether it was the bounden duty of the judgment-debtor when an execution

application was pending to raise the question regarding, the scaling down and If he failed to do that, whether it is open to him at a later stage to file

an application for scaling down. Subba Rao J. held that the decision in -- ''Adaikappa Chettiar v. Chandrasekhara Thevar'', ILR 1948 Mad 505,

did not go to the extent of holding that an application u/s 19 of the Madras Agriculturists Relief Act is one relating to the execution of the decree in

order that all the other provisions of the Code regarding executability of the decree should apply to that application. Subba Rao J. was of opinion

that the decision of the Privy Council amounted to this, namely, that so far as appealability is concerned, an order u/s 19 should be deemed to be

as if made under execution and no more.

We have perused the judgment of the Privy Council in -- ''Adaikappa Chettiar v. Chandrasekhara Thevan'', ILR 1948 Mad 505, and it seems

to us that their Lordships did not hold that an application u/s 19, Madras Agriculturists Relief Act, is one relating to execution of the decree. What

their Lordships held was that the decision of this court in - ''Nagappa v. Annapoorni'', ILR 1941 Mad 261, to the effect that no appeal lay from an

order passed u/s 19 is incorrect, because in their Lordships'' view a decision u/s 19 is one which finally determines the rights of the parties and is a

formal expression of adjudication so far as the Court expressing it is concerned and it conclusively determines the rights of the parties with regard

to one of the matters in controversy in the suit. Such being the case, an order u/s 19 is one which can come within the definition of the decree in

Section 2(2), Civil P. C. Mr. Kesava Ayyangar relied upon the sentence at page 514 in -- ''Adaikappa Chettiar v. Chandrasekhara Thevar'', ILR

1948 Mad 505, where their Lordships state that one of the orders contemplated in that appeal, namely, the order of 25th July 1938 was one

relating to the execution, discharge or satisfaction of the decree within the meaning of Section 47 of the Code and an appeal lay u/s 96. The order

was one passed u/s 20, Madras Agriculturists Relief Act, by which the judgment-debtor requested the court to postpone the execution of the

decree in order to enable him to file an application for scaling down the decree. Section 20 lays down that if no relevant application u/s 19 is made

within 60 days, then the execution will have to proceed. It cannot be disputed that so far as an order u/s 20 is concerned, it is one relating to

execution of the decree, because what is asked for is a postponement of the execution of the decree and it is therefore a matter relating to the

execution of the decree. The decision of the Privy Council referred to does not say that because of the above observations regarding the nature of

the application u/s 20, the order u/s 19 should be treated as one falling within the definition of execution, discharge or satisfaction of the decree u/s

47, C. P. C.

Our attention was invited by Mr. Kesava Aiyangar to another decision in -- ''Sha Sivaraj Gopalji v. Ayissa Bi'', 1949 2 MLJ 493, where the

facts were these: The decree-holder attempted to attach the share of a member of a Mappilla Marumakathayam tarwad and because of the law

regarding impartibility then in existence it was not allowed, though by the time the order had been passed, the Madras Mapilla Marumskathayam

Act which allowed partibility had been passed by the legislature. The result of this enactment was that the share of any member could be attached

and sold in execution of the decree. It was sought to be raised in the appeal before this court but was not permitted and the appeal was dismissed.

The decree-holder filed a fresh execution application asking for attachment of the share of the judgment-debtors and the Sub Court ordered the

attachment. In appeal again this Court held that the order in the previous execution application was res judicata as the decree-holder could have

raised the plea in the earlier application but failed to do so it is therefore barred by the principle of res judicata. The view of the High Court was

upheld by the Privy Council. We do not see how the decision of the Judicial Committee can be applied to the facts of the present case. Section 19

does not state the period during which an application for scaling down has to be made. It has been held by this Court that so long as the decree is

in existence and could be executed, it is open to the judgment-debtor to apply for scaling down. We do not think that the decision in -- ''Sha

Sivaraj Gopalji v. Ayissa Bi'' can be of any assistance to this appeal.

The decision of the present case can be made to rest on much narrower ground, namely, that before Bell J. finally decided C.M.S.A. No. 177

of 1944 there was an application made to the executing Court E.A. No. 229 of 1944, to stay execution proceedings and that was allowed on 21st

July 1944. It was in pursuance of that application that the present I.A. No. 430 of 1944 was filed to scale down the decree. Therefore, the genesis

of I.A. No. 430 of 1944 was antecedent to the order of the High Court holding that the execution of the decree was not barred by limitation. A

Full Bench of this Court in -- ''Desikachariar v. Ramachandra Reddiar'', 19511 MLJ 23, has laid down that if in an application u/s 20, the question

whether the applicant is an agriculturist or not had been raised and decided that would operate as res judicata in any subsequent application to

scale down the decree. Therefore then in E.A. No. 229 of 1944 it was held on 21st July 1944 that the applicant was an agriculturist entitled to the

benefits of the Act and therefore entitled to scaling down the decree and that has not been set aside by any proceedings, we cannot say that the

applicant did not raise the question of the scaling down before the High Court decided C.M.S.A. No. 177 of 1944. Such being the case, the

objection raised namely, that the present application for scaling down is barred on account of the principle of res judicata in execution relying upon

the decision in -- ""Adaikappa Chettiar v. Chandrasekhara Thevar'', ILR 1948 Mad 505, is not sustainable.

Another point to be considered is that even if there is an execution petition pending and the judgment-debtor raises the question that the decree

has to be scaled down, it is not open to the court to take notice of that objection unless either the decree-holder or the judgment-debtor files an

application u/s 19 of the Act, since Section 19 positively lays down that a decree can be scaled down only on an application. 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 u/s 39 of the Act, is not one which comes u/s 47,

Civil P. C. and therefore the principle of res judicata in execution cannot apply to the facts of the present case.

This Letters Patent Appeal is, therefore, dismissed with costs.