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Judgment
Subba Rao, J.—This is a civil miscellaneous second appeal against the order of the Court of the Subordinate Judge of Ottapalam in A.S.
No. 144 of 1949, setting aside that of the District Munsif of Chowghat in E.A. No. 233 of 1949.
The appellant executed a possessory mortgage deed dated 29th July 1913 in favour of the respondent. Under that document the mortgagor was
liable to pay Rs. 2 to the mortgagee in addition to the income for the purpose of paying the Government assessment as the income was not
sufficient to pay the interest. The appellant filed O.S. No. 145 of 1948 for redemption of the mortgage. In that suit he claimed relief under Sections
8 and 9 of the Madras Agriculturists'' Relief Act, (IV (4) of 1938). He contended that the Rs. 2 payable by him represented a payment towards
interest on the mortgage amount and that the amount was liable to be scaled down u/s 8 of Act IV (4) of 1938. The District Munsif accepted his
contention and scaled down the debt on 20th October 1948.
Subsequently, under the Amending Act, (XXIII (23) of 1948), the Legislature introduced Section 9-A whereby under certain circumstances an
usufructuary mortgage debt would be deemed to be completely discharged, or substantially reduced. Taking advantage of that section, the
appellant again filed E.A. No. 233 of 1949 for reopening the decree and scaling down under the new Act. The learned District Munsif amended
the decree showing that the amount payable by the appellant was Rs. 22 for interest, Rs. 31-8-0 as costs of suit and Rs. 173-0-3 for value of the
improvements.
The relevant provisions of Act IV (4) of 1938 may now be read:
Section 10(2): Nothing contained in Sections 8 and 9 shall affect any mortgage by virtue of which the mortgagee is in possession of the property
mortgaged, where no rate of interest is stipulated as due to the mortgagee except to the extent provided for in Section 9 A.
Section 9-A: Where a usufructuary mortgage was executed at any time before 30th September 1947 and the mortgagee is in possession of the
property mortgaged to him, the mortgagor shall be entitled to redeem the property notwithstanding that the time, if any, fixed in the mortgage deed
for redeeming the mortgage has not arrived.
Under the other provisions of Section 9-A the mortgage amount would be scaled down having regard to the circumstances mentioned therein.
The explanation to Section 9-A runs thus: ""An ''usufructuary mortgage'' in this section means any mortgage by virtue of which the mortgagee is in
possession of the property mortgaged, where no rate of interest is stipulated as due to the mortgagee.
Under Section 10 of the Act a mortgage by virtue of which the mortgagee is in possession of the property mortgaged, where no rate of interest is
stipulated, cannot be scaled down under Sections 8 and 9 of Act IV (4) of 1938, but by reason of Section 9-A even such a usufructuary mortgage
can be scaled down in the manner provided by that section.
In the suit the appellant contended that the document was not an usufructuary mortgage as defined u/s 10(2) and on that basis obtained reliefs
under Sections 8 and 9 of the Act. At the time when he sought for and obtained the relief Section 9-A was not in the statute book. Section 9-A
was introduced in the Act by Act XXIII (23) of 1948. Now in the same proceedings he is seeking to amend the decree on the ground that it is an
usufructuary mortgage within the meaning of the explanation added to Section 9-A. An usufructuary mortgage in the explanation to Section 9-A is
defined in similar terms to an usufructuary mortgage defined u/s 10 of the Act.
The position therefore is this: the appellant who obtained relief at one stage of the suit on the basis of a document which was not an usufructuary
mortgage, now seeks to get a relief on an inconsistent basis namely that the suit document is an usufructuary mortgage. No party to a suit can be
allowed to get relief on inconsistent positions on the principle of ""approbate and reprobate"". But Mr. Ramakrishna Aiyar contended that in
accordance with law then existed, he was able to get relief under Sections 8 and 9 of the Act but the present relief is only based on the right
conferred upon him under the amended section. It is true that a party to a suit or a proceeding can acquire a new right by reason of an amending
Act. But in this case the new right conferred upon the petitioner depends upon a fact namely whether the document is a usufructuary mortgage or
not. As the appellant got relief from the court on the basis that it was not an usufructuary mortgage, he cannot now rely upon a new pro-vision on
an inconsistent foundation.
The learned counsel then relied upon a Full Bench decision of this Court reported in S.M. Narayana Aiyangar Vs. S.P.R.M. Subramanian
Chettiar and Others, , In that case no principle of ""approbate and reprobate"" was raised or considered. Ramesam J. who delivered the leading
judgment, only laid down the well-recognised principle that there can be no res judicata by laying down a wrong rule of law between the parties for
future guidance also and that that decision must be confined to matter to which it has been applied at the time of the former decision.
In the view I have taken it is unnecessary to consider the other question namely whether the document provided for a rate of interest within the
meaning of Section 10(2) (i) of the Act.
The appeal fails and is dismissed with costs.
No leave.