Nunna Seshamma vs Kalla Ganga-raiu and Others

Viswanatha Sastri, J.—This second anneal arses out of a suit for recovery of Rs 524-il-o being the amouiit of principal and interest alleged to have been collected by the 1st) Defendant ''n ex es- of the amount really due to him in execution of the decree in O. S. No. 79 of 1935 on the file of the Court of the District Munsif of Kovvur. The p ain-liif and the deceased husbands oi the Defendants 2 and 3 were brothers. On foot of a promissory note executed by them in favour of the 1st def.n-dant, the latter filed O. S. No. 79 of 1935 and cb-tained a decree on 19th February, 1936. Oae of the judgment-debtors mortgaged his properly and as part of the consideration for the mortgage, directed the mortgagee to discharge his liability under the decree in O. S. No. 79 of 1935 to the ex''e;.t of his l/3rd share which was Rs. 250. The mortgagee accordingly paid on 15th June, 1936 a sum of Rs. 250 towards the decree in O. ST No. 79 of 1935, Exhibit A-5 being the receipt of the decree-holder for this sum. The decree in O. S. No. 79 of 1935 was subsequently scaled down on a petition filed by one of the judgment-debtors, Exhibit A-2, dated 15th September, 1939 being the decree as scaled clown. On 5th February, 1948 an execut on petition E. P. No. 70 of 1948 was filed by die decree-holder and a sum of Rs. 746-8-0 was real''sed in full satisfaction of the decree from the judgment-debtor. There were previous execution petitions which were relied upon the decree-holder for saving time for E. P. No. 70 of 1948 but it is unnecessary to refer to them. On the allegation that the decree-holder in O. S. No. 79 of 1935 ha! omitted to give credit to the sum of Rs. 250 paid in partial discharge of the decree by.the mortgagee from one of the judgment-debtors, the Plaintiff, who had paid the entire amount of the decree as scaled down, brought the present suit for covery of the amount collected by the decree-hold: r in excess of the amount that would have been really due if credit had been given to the sum of Rs. 250 paid on the 15th June, 1936 to the decree-holder as per receipt Exhibit A-5. The contesting Defendant raised the plea that the suit was barred by res judicata and limitation and also that the sum of lis. 250 paid by the mortgagee from one of the judgment-debtors in partial discharge of the decree had been taken into consideration at the time when the decree was scaled down. The Courts below found that the sum of Rs. 250 was not taken into consideration at the time of sealing down the decree and that the decision of the Court, scaling down tire decree, did not constitute res judicata and there was no bar to a determination of the amo ''nt really payable under the decree. The Courts below also held that the suit was not barred by limiation.

In this second appeal, the learned Advccate for the Appellant challenges the findings of the Courts below on all the points. The quesiori whether the sum of Rs. 250 paid to the decrce-ho''der on 15th June, 1936 was taken into consideration by the Court when it scaled down the decree, is very difficult to decide. The records connected with the proceedings for scaling down the decree are not available in spite of the attempts made by the Appellant for obtaining copies. It is clear from Exhibit A-3, an Execution Petition No. 53 of 1939 dated 15th February, 1939 filed by the decree-hol-der for execulion of the decree in O. S. No. 79 of 1935 that the decree-h'' lder omiltcd to give credit to the payment of Rs. 250. This was improp r conduct on his part. It is urged on behalf ol the Appellant lhat the sum of Rs. 250 might have been adjusted towards the interest payable on the debt and the principal sum of 400, and interest-subsequent to 1-10-1937 might lveen fixed bv-the Court scaling down th" decree as the amount due and payable then under. Whether the sum of list. 250 was an open payment and whether in 1039 when the decree was sea down, the law as regards the appropriation of open payments had been settled in the manner in which it was settled by the later dictions ol the Madras High Court, is a matter ol conjecture. It is again not to say whether, as a matter oi fact, the sum of Rs. 250 was appropriated to the outstanding interest on the loan which had been conlrac i d o i 13.h March, 1932. Having regard to the principal and interest determined as due and payab.e under the decree when it was amended under the scaling down provisions of the Madras Act IV of 1038, it is liko''y, as observed by the Lower Appellate Court, that the sum of Rs. 250 was not taken ink) account at the time when the decree was scaled down, In any case, it is a question of fact on which one of two inferences is possible and I am unable to differ from the conclusion of the Lower Appellate Court that the payment of Rs. 250 was not taken into account by the Court when the decree was scaled down.

A further question arises whether the order scaling down the decree operates as res judicata and bars the plea of the judgment-debtor that in addition to the relief given to him as a result of the scaling down operations, he is entitled to a further reduction of Rs. 250. A proceeding under Madras Act IV of 1938 for scaling down the dbt of an agriculturist and for the amendment of a decree passed against him on such scaling down, is an original proceeding, the decision in which is subject to appeal. A proceeding for scaling down, the debt and amending the decree on such scaling down is not a suit and therefore might not fall within the literal terms of Section 11, Code of Civil Procedure. At the same time, it has been held by the Judicial Committee that Section 11 is not exhaustive of the circumstances in which an issue may be res judicata. As observed by the Judicial Commit ee, the application of the rule by the Courts in India should be influenced by no technical considerations of form,but by matter of substance within the limits allowed by law. See AIR 1930 22 (Privy Council) and Sheoparsan v. Hamanandan ILR Cal 694 : AIR 1916 PC 78) (B). The Judicial ConueiMee laid down in Hook v. Administrator-General of Bengal ILR Cal 499 : AIR 1921 PC 1 D(C), that the plea of res judicata still remained apart from the limited provisions of Section 11, CPC and referred with approval to an earlier decision of the Board in Ram Kirpal v. Rup Kuari ILR All 269 (PC) (D), which held that the binding force of an interlocutory judgment in execution proceedings depended not upon the section of the CPC but upon general princip''es of law. In Ramohandra v. Ramchandra ILR Mad 320 : AIR 1922 PC 80) (E), the Privy Council again reiterated the principle that a decision in order to constitute res judicata need not necessarily have been given in a prior suit. The principle which prevents the same case being twice litigated is of general application, and is not limited by the specific words of Section 11, Code of Civil Procedure, in this respect. It is, therefore, clear that the decision of the Court scaling down the decree as regards other amount payable under it would be residua a between the parties in a subsequent proceeding.

The further question is whether the order for scaling down the debt and amendment of the decree could be construed as negative the present claim of the Plaintiff. The Plaintiff was one of three judgment-debtors. His brother, who was a co-judgment-debtor with the Plaintiff, had arranged for payment of Rs. 250, towards the decree, there is nothing to show that the Plaintiff was not aware of this payment. Indeed, the Plaintiff has not even examined himself in this suit. When the Court scales down a debt and amends a decree, it really takes an account of the amount remaining due by the agriculturist debtor to the creditor on the date of scaling down. Not only is interest in excess of the statutory rate wiped off .under Madras Act IV of 1938 but also payments in partial discharge of the debt have to be taken into account in finally fixing the liability of the debtor to the creditor and passing an order sealing down the debt or amending the decree as the case may be. It is therefore incumbent upon the debtor who apples for the scaling down of a decree, to allege and prove any payments made in partial satisfaction of the decree. Even an uncertified payment towards the , decree can be pleaded and proved by tire judgment-debtor in an application for scaling down and amendment of the decree. It is a claim which he might and ought to have made in the proceedings for scaling down the decree and if he omits to plead and prove such partial satisfaction of the decree the matter will be deemed to have heard and decided against him by the Court scaling down the decree. The plea of res judicata applies not on!y to poits on which court was actually required by the parties to pronounce judgment but also to every point which properly belonged to the subject of gabion and which the parties exercising reasonable diligence might have brought forward at the time for adjudication. AIR 1945 132 (Privy Council) , Vinayak v. Dattatraya ILR 2 Bom 661 at p. 667 (G), and Krishna Chandra Roy Vs. Surendra Nath Bandopadhya and Others, . The decree as amended must therefore be taken to be a judicial adjudication of the amount due by the debtor to the creditor on the date of the amendment and it is not open to the debtor to plead that credit should have been given to him for further or other amounts on the date of the scaling down and amendment of the decree.

For these reasons, I am of die opinion that the decision of the Court below is erroneous and that the suit should be dismissed. In view of the fact that the first Defendant is succeeding on a plea of repudiate and in view of the Binding of fact arrived at by the Courts below that the payment of Rs. 250 was omitted to be taken into consideration when the decree was scaled down, I direct that each party to hear his own cost throughout. No leave.