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Judgment
Wadsworth, J.—The Civil Miscellaneous Appeals are preferred against the order of the District Judge rejecting applications filed in one
case under Sections 8 and 19 and in the other case under Sections 20 and 23 of Act IV of 1938. The Civil Miscellaneous Petitions have been
preferred owing to the doubt whether a Civil Miscellaneous Appeal would lie praying that these appeals may, if necessary, be converted into Civil
Revision Petitions. We have heard these matters on a preliminary objection without deciding the question whether the proper form should be an
appeal or a revision petition. The decree out of which these applications arose was passed on the ''23rd October, 1935. In February, 1936, the
decree-holder preferred an appeal to the High Court the main objection taken in appeal relating to the rate of interest. There was no stay of the
lower Court''s decree and the decree-holder proceeded with its execution while the appeal was pending and in November, 1937, brought to sale
the petitioners'' property. In March, 1938, the executing Court recorded an agreement whereby the sale should be set aside on certain terms,
which were in fact not fulfilled. In June, 1938, the petitioners preferred these applications, one being for stay and the other, though it is styled an
application under Sections 8 and 23 is in substance one under Sections 19 and 23 of the Act. On 26th September, 1938, the lower Court
dismissed these applications holding that Act IV of 1938 so far as it affected the provisions of the Negotiable Instruments Act was ultra vires of the
Provincial Legislature. In these applications a counter-affidavit was filed in which attention was drawn to the fact that there was an appeal pending
in the High Court against the trial Court''s decree. The petitioners filed the present appeals against the dismissal of their applications. Instead of
getting these appeals clubbed along with the appeal against the original decree, they allowed the main appeal to proceed ex parte and did not
advance therein any claim that they might have, to scale down the debt under Act IV of 1938. On 6th April, 1939, the main appeal was disposed
of, the lower Court''s decree being slightly modified, but substantially the appeal failed.
Now the preliminary objection taken to the maintainability of these Civil Miscellaneous Appeals,, assuming that an appeal lies (a matter on which
we express no opinion) is, that the appeals have become infructuous by reason of the substitution of the appellate decree for the original decree
which the applicants sought to scale down. It seems to us that this objection must succeed. We have held that Section 19 of Madras Act IV of
1938 has no application to decrees passed after the Act came into force, one reason being that any person who has a contention to urge which will
affect such a decree must urge it in the pending proceedings and if he does not urge it must be taken to have waived it. We see no reason to apply
a different principle to proceedings in appeal of which the affected party has had notice. It may be that in some cases it will be necessary for a
person who has applied u/s 19 to scale down the lower Court''s decree to put in a separate application to the. appellate Court to the same effect
and that there will be some duplication of proceedings. But in the present case not even that was necessary, for the desired result could have been
achieved by the simple process of asking that these Civil Miscellaneous Appeals and the connected petitions should be clubbed along with the
main appeal.
It is difficult to see how when the appellate decree has taken the place of the lower Court''s decree as the sole decree which can be executed,
any practical result would be achieved by going on with the application to scale down the lower Court''s decree. It is suggested that because there
was an executable decree at the time when these applications were rejected this Court should decide whether or not the applications were rightly
rejected and remand the proceedings if wrongly decided for fresh disposal by the trial Court, in order that the applicants might take such action as
might be available to them to get the appellate Court''s decree modified to give effect to the scaling down process. It seems to us that when once it
is conceded that the decree which the applicants sought to amend is no longer an executable decree and that the decree which has been substituted
for it in appeal cannot be scaled down u/s 19, the present proceedings attacking the lower Court''s order have become infructuous. In this view
therefore we dismiss the appeals and the connected petitions, with costs in the appeal only (one set in each appeal). The memorandum of
objections in C. M. A. No. 643 of 1938 is dismissed but there will be no order as to costs.