Madras High Court
V.E.Rm.K. Ramasamy Chettiar vs R.M.A.R.Rm.A.R. Ramanathan Chettiar on 26 November, 1997
Equivalent citations: 1997(3)CTC123
ORDER K. Govindarajan, J.
1. The judgment-debtor aggrieved against the order of the lower Appellate Court has filed the above appeal.
2. The respondent obtained a decree against the petitioner in O.S.No.55 of 1972, on the file of the District Munsif Court, Devakottai, for a sum of Rs. 970. On Appeal, in A.S.No.262 of 1975, this Court modified the decree for a sum of Rs. 7,500. Thereafter, the petitioner filed I.A.No.450 of 1980, on the file of the said District Munsif, under Section 16 of Act 40 of 1979 to scale down the debt.
3. The learned District Munsif passed an order on 18.3.1982 scaling down the debt under the said Act and fixed the decree amount at Rs. 3,470 and directed the petitioner to pay the same in instalments from 14.7.1978. Aggrieved against the same, the respondent filed appeal in C.M.A.No.15 of 1982, on the file of the learned Sub-Judge, Devakottai. The lower Appellate Court allowed the appeal. Aggrieved against the same, the judgment- debtor has filed the above Appeal.
4. There is no dispute about the fact that the respondent obtained a decree in O.S.No.55 of 1972 and it was modified in A.S.No.262 of 1975 in and by the judgment dated 13.7.1979. The lower Appellate Court allowed the appeal on the basis that Act 40 of 1979 came into force on and from 13.6.1979, before the decree passed in A.S.No.262 of 1975, on 13.7.1979 and so Act 40 of 1979 will not apply.
5. The learned counsel appearing for the appellant has submitted that the said Act came into force on 13.6.1979. The decree was obtained even before that date. So, on the basis of the appeal decree it cannot be said that the appellant cannot get the benefits under the said Act.
6. The suit was decreed by the lower Court, before coming into force of the Act 40 of 1979, and in the appeal, A.S.No.262 of 1975, the decree was modified on 13.7.1979, and the abovesaid facts are not in dispute. Now, it has to be decided whether the decree, in the appeal can be taken into consideration for applying the provisions of the Act 40 of 1979.
7. Section 16 of the said Act reads as follows:-
Amendment of certain decrees :- Where before the date of the publication of this Act in the Tamil Nadu Government Gazette, a court has passed a decree for the repayment of a debt, it shall, on the application of any judgment-debtor who is a debtor within the meaning of this Act, or in respect of a Hindu joint family debt on the application of any member of the family whether or not he is the judgment-debtor or on the application of the decree-holder within six months from the date of such publication apply the provisions of this Act to such decree and shall, not withstanding anything contained in the Code of Civil Procedure, 1908, (Central Act V of 1908) amend the decree accordingly or enter satisfaction, as the case may be. Provided that all payments made or amounts recovered, whether before or after the date of such publication in respect of any such decree shall first be applied in payment of all costs as originally decreed to the creditor"
8. On the basis of the abovesaid provision, the learned counsel appearing for the respondent has submitted that the appellant wants to scale down the decree amount as fixed by the High Court in A.S.No.262 of 1979 and so, the date of the decree in A.S.No.262 of 1975 alone has to be taken into consideration to find out whether the appellant is entitled for the benefits under the said Act or not.
9. In Mohammed Sulaiman Khan v. Muhammad Yarkhan, 1989 (II) All. 267, Sri John Edge, following the view taken in Veerappa v. Sivagami, A.I.R 1942 Mad. 291, has held as follows:-
In my opinion the effect of Section 579 of the Code (1882) (corresponding to Order 41, Rule 35, Civil P.C., 1908) is to cause the decree of the appellate Court to supercede the decree of the Court below even when the decree when the decree of the appellate Court is one which merely affirms that decree and does not reverse it or modify it. In my opinion the only decree that can be amended is the decree to be executed, and the decree to be executed is the decree of the appellate Court and not the decree of the Court below"
10. The abovesaid view was followed in Manavikrama v. Unniappan, 2 MLJ 23 and later affirmed by the Full Bench in Pichu Iyengar v. Sesha Iyengar, 5 MLJ 39.
11. In Kristnamachariar v. Mangammal, ILR 26 Mad. 91 it has been held as follows:-
"When an appeal is preferred from a decree of a Court of first instance, the suit is continued in the Court of appeal and reheard either in whole or in part, according as the whole suit is litigated again in the Court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of the first instance"
12. The Division Bench of this Court in Veerappa v. Sivagami, AIR 1942 Mad. 291 had held as follows:-
"It is no doubt true that before the appeal is decided an application to the trial Court under Section 19 is competent, but if before the appeal is decided, it is the duty of either party to bring the fact before or at the hearing of the appellate Court either by way of appeal or otherwise so that the Appellate Court might pass the appropriate decree. As pointed out in 40 Mad. 818 at Page 822, the authority of an appellate Court is not limited to determining the question whether the original Court was right according to the law in force at the time of its judgment. It is entitled to pass such a decree as would be in accordance with any later enactment which came into operation subsequent to such date. To avoid anomalies and multiplicity of proceedings a party ought to make the application to the appellate Court for the relief he is entitled to under an enactment which came subsequent to the passing of the decree of the original Court and get the necessary relief in accordance with that enactment. The pendency of the appeal suspends the finality of the decree of the original Court and before a final decree is passed by it, all the relief which a party is entitled to and which would have been given by the original Court had the later enactment been in existence on the date on which it passed the decree should be urged before the appellate decree is passed, because once a decree is passed as pointed out by the Privy Council in 24 Mad. III at Page 10, it is not open to a Court in amend or review a decree except under Section 152 or Order 47, Rule 1 Civil P.C. And the relief under the Act cannot be bought under any of those sections. Therefore the party runs the risk of losing the benefit under the Act if he does not urge before the appellate Court the plea which the new enactment gives him or if he has already obtained a decree in the first Court, he fails to bring it to its notice"
13. In Munisami Naidu v. Munisami Reddi, ILR 22 Mad. 293, it has been held that the jurisdiction of the Court of first instance to amend the decree under Section 206 was ousted by the confirmation of the decree on appeal. This decision was given following the decision of the Full Bench decision of this Court in ILR 18 Mad. 214.
14. In view of the judicial pronouncements, the decree in the appeal dated 13.7.1979 had to be taken into consideration to invoke the benefit of the Act, 40 of 1979. Since the Act came into force before the said decree, the petitioner is not entitled to invoke the provision of Act 40 of 1979. I am of the opinion that the Application before the lower Court was incompetent.
15. Though the appellant filed the petition for getting the benefit under Section 16 of the said Act, he has not adduced any oral or documentary evidence to prove his entitlement for the said benefit. Merely on the basis of the averments in the petition, the lower court has granted the relief. The benefits can be given under the said Act only on satisfying certain conditions. As such, the appellant has to prove that he will come within the scope of the said Act so as to enable him to claim the benefit. Admittedly, no evidence is available on record to prove that he is the 'debtor' under the Act. So, the lower court is not correct in granting the relief in favour of the appellant. So, the order of the lower appellate court has to be sustained.
16. In the results, the C.M.S.A. fails and is dismissed. No costs.