Kannabhiran Pillai vs Govindaswami Pillai

Wadsworth, J.—This revision petition raises the question of the proper procedure in a matter arising under Madras Act IV of 1938. The

present petitioner was a defendant in a suit which was dismissed on 30th November, 1937, that is to say, before the Act came into force. There

was an appeal by the plaintiff and the appellate Court after Act IV of 1938 came into force reversed the decision of the lower Court and gave a

decree. The last sentence of the judgment of ''the appellate Court is as follows:

This judgment will not preclude the defendants from applying to the lower Court for scaling down the debt under the provisions of Madras Act IV

of 1938 if they are entitled to have such relief.

It is common ground that no formal application under Madras Act IV of 1938 was before the learned Judge when he disposed of the appeal. It

is not clear whether any oral representation was made at the time of passing judgment that the defendants'' rights under Act IV should be reserved.

But it seems to me probable that something must have been said to cause the learned Judge to make this reservation in his judgment. After the

pronouncement of this judgment a decree was drawn up which contains no provision for a reservation such as the judgment contains. Thereafter

the present petitioner applied to the trial Court to scale down the appellate Court''s decree u/s 19 of Act IV. At the time when this application was

made there was a good deal of difference of opinion on the question whether a decree passed after the Act came into force could be scaled down.

That doubt has, I hope; been finally set at rest by our decision reported in Motam Kotayya alias Prakasam Vs. Singampalli Venkata Punnayya, . In

the light of that decision, it must be held that the application to the lower Court to scale down the appellate Court''s decree u/s 19 was not the

proper procedure. At the same time it does not seem equitable merely because the petitioner has adopted a wrong procedure and has not

understood what is the right procedure to leave him without a remedy if a legal remedy is open to him.

Now it is doubtful whether the order of the Subordinate Judge reserving a plea under Act IV of 1938 for subsequent adjudication should have

been passed in the absence of an express prayer for the benefits of the Act. Assuming, however, that the Judge had the intention of reserving a

plea which was open to the defendants and which would have been taken in writing had the necessity therefor been made plain, the irregularity, if

irregularity it be, should not deprive the defendants for their remedy when both parties have treated the order of the Subordinate Judge as binding

upon them vide Hriday Nath Roy v. Ramchandra Barna Sarma I.L.R.(1920) Cal. 138 and Tuljaram Row v. Gopala Aiyan (1916) 32 M.L.J. 434.

The Subordinate Judge having granted the defendants leave to raise in the trial Court the question of the relief to which they may be entitled under

Act IV of 1938 this order binds both parties and cannot be treated as void merely by reason of an alleged irregularity. I would, however, observe

that, though no procedure has been laid down in the Act, in a case of this kind when a liability is being declared in the appellate Court''s decree for

the first time and a plea is open to the defendants under Madras Act IV of 1938 there should be a written application raising this plea before the

appellate Court and on such application the appellate Court should either give its own decision or reserve in its decree the right to have the matter

decided by the Court below. On the facts of the present case it seems to me clear that the Court below could not proceed with the enquiry under

Act IV of 1938 in the face of the appellate Court''s decree which makes no provision therefor. The proper ""procedure therefore appears to be for

the petitioner to apply to the appellate Court to have the decree brought in accordance with the judgment by embodying therein a direction to the

trial Court to deal with the application for relief under Act IV of 1938 and amend the decree according to its decision. If and when the petitioner

makes such an application to the appellate Court it will of course be open to the respondent to urge any objections which may be available to him

to the amendment of the decree. Should the appellate Court carry out the desired amendment, the petitioner will then be at liberty to apply to the

trial Court - not u/s 19 which really has no application to a decree passed after the Act came into force - but under Sections S and 9 as in a

pending litigation, the matter having been reserved in the appeal for separate disposal.

The revision petition against the order of the District Munsif must be dismissed, his order being correct on the frame of the petition, though he

might perhaps have given to the petitioner some guidance as to the course which he should follow. In the circumstances I make no order as to

costs.