# D. Slephnis v. NosiboUa. Chatulrasthhara AV'af]

- **Citation:** [1951] 1 S.C.R. 292
- **Court:** Supreme Court of India
- **Decided:** 1948-01-05
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-slephnis-v-nosiboua-chatulrasthhara-av-af-82
- **Pages:** 11

## Headnote

1951
D. Slephnis
v.
NosiboUa.
Chatulrasthhara
AV'af].
1951
March 5.
292
SUPREME COURT REPORTS
[.1951]
on rerord.
As already pointed out, there has been no
such error in the present case; on the other hand, it
seems to us that. on both the previous occasions, the
Chief Presidency Magistrate was right in holding that
the accused was not guilt)' of any offence under sections
25 and 26 of the Indian Merchant Shipping Act.
The order of the High Court ·is set aside and that of
the Chief
Presidency
Magistr:tte is restored.
The
accused will stand acquitted of the charge.
Order set aside.
Agent for the appellant : P. K. Chatteriee.
Agent for the respondent : l. N. Shroff for P. K.
Bose.
V. RAMASWAMI AYYANGAR AND OTHERS
fl.
T. N. V. KAILASA THEVAR.
[SAIYID FAZL Au, MEHR CHAND MAHAJAN,
MUKHERJEA and CHANDRASEKHARA AIYAR JI.]
Madras Agriculturists' Relief Act (IV of 1938), ss. 7, 19-Joint
debtors-Application for scaling down made by some only-Decree
for
full amount against ex parte
defendants and
for
reduced
amount against
others-Legality and effect-Indivisibility of debt
-Payment of full amount as scaled down-Whether extinguishes
decree against all.
Under the Madras
Agriculturists' Relief Act,
1938, a mortgage decree can be scaled down in favour of some of the judgment
debtors alone, while as regards the others it is kept intact.
In a suit to enforce a mortgage executed by defendant No. 1
on his own behalf and on behalf of defendants Nos. 2 to 7, the
defendant No. 1 remained ex parte, and the others contested the
suit.
A decree for
Rs. 1,08,098 was passed by ~
trial court.
The Madras Agriculturist' Relief Act, 1938, was passed during
the pendenry of an appeal and cross appea~ and on the application of defendants Nos. 2 to 7 under the said Act the amount of
the decree was scaled down to Rs. 49,255 so far as defendants
Nos. 2 to 7 were concerned.
So far as defendant No. 1 was
coriccrned the
decree for the full
amount
rcmainCd as it
was.
Defendant No. 1 thereupon applied for scaling
down, but his
S.C.R.
SUPREME COURT REPORTS
293
application
was
rejected.
Defendants
Nos.
2
to 7 dcopsitcd
certain amounts and got their
properties released.
Defendant
No. 1 deposited the balance of the amount that remained due
under the decree as scaled down on the application of defendants
Nos. 2 to 7,
and prayed that full satisfaction of the decree may
be recorded. · The Subordinate Judge
rejected
this application
but the High Court, on appeal, held that defendant No. I was
entitled to the benefit of the scaling down in favour of defendants
Nos. 2 to 7, as the mortgage
debt was one and indivisible.
On
further appeal :
Held, that the ratio dccidendi of the cases in which it was held
that a purchaser of mortgaged properties was entitled to the benefit of a decree which has been scaled down, even diough the purchaser himself was not an agriculturist was not applicable to the
present case.
According to the plain provisions of the Act, there
was no objection to a decree for a reduced amount being passed
against an agriculturist debtor, while the same relief is not given
to his co-debtors,
and defendant No. 1 was not entitled to claim
the benefit of ·the scaling down of the decreC-: debt in favour of
defendants Nos.
2 to 7.
Judgment of the Madras High Court reversed.
Ramiet v. Srinivasiah [(1940) 2M.L.J. 872] referred.to.
Arunachalam Pillai v. Seetharam [(1941) I M.L.J. 561'!.
Pachigola
v.
Karatam
[1242) 1 M.L.J. 506],
Subramaniam
v.
Ramchandm [ (1946) :?. M.L.J. 429] distinguished.
CIVIL
APPELLATE
JuRISDIC'fION: :
Appeal
(Civil
Appeal No. 32 of 1950), from a judgment and order
of the J1igh Court of Judicature at Madras dated 5th
January, 1948, reversing an order of the District Judge
of East Tanjore in aμ application under s. 47 and
0. XXI, r. 2, of the Civil Procedure Cpde.
R. K. Kesava Aiyangar (T. K. Sundal'araman, with
him) for the appellants.
S. Ramachandra Aiyar for the respondant.
1951.
March 5.
The judgment of the Court was
delivered by
MuKHERJEA J.-This ap

## Text

1951
D. Slephnis
v.
NosiboUa.
Chatulrasthhara
AV'af].
1951
March 5.
292
SUPREME COURT REPORTS
[.1951]
on rerord.
As already pointed out, there has been no
such error in the present case; on the other hand, it
seems to us that. on both the previous occasions, the
Chief Presidency Magistrate was right in holding that
the accused was not guilt)' of any offence under sections
25 and 26 of the Indian Merchant Shipping Act.
The order of the High Court ·is set aside and that of
the Chief
Presidency
Magistr:tte is restored.
The
accused will stand acquitted of the charge.
Order set aside.
Agent for the appellant : P. K. Chatteriee.
Agent for the respondent : l. N. Shroff for P. K.
Bose.
V. RAMASWAMI AYYANGAR AND OTHERS
fl.
T. N. V. KAILASA THEVAR.
[SAIYID FAZL Au, MEHR CHAND MAHAJAN,
MUKHERJEA and CHANDRASEKHARA AIYAR JI.]
Madras Agriculturists' Relief Act (IV of 1938), ss. 7, 19-Joint
debtors-Application for scaling down made by some only-Decree
for
full amount against ex parte
defendants and
for
reduced
amount against
others-Legality and effect-Indivisibility of debt
-Payment of full amount as scaled down-Whether extinguishes
decree against all.
Under the Madras
Agriculturists' Relief Act,
1938, a mortgage decree can be scaled down in favour of some of the judgment
debtors alone, while as regards the others it is kept intact.
In a suit to enforce a mortgage executed by defendant No. 1
on his own behalf and on behalf of defendants Nos. 2 to 7, the
defendant No. 1 remained ex parte, and the others contested the
suit.
A decree for
Rs. 1,08,098 was passed by ~
trial court.
The Madras Agriculturist' Relief Act, 1938, was passed during
the pendenry of an appeal and cross appea~ and on the application of defendants Nos. 2 to 7 under the said Act the amount of
the decree was scaled down to Rs. 49,255 so far as defendants
Nos. 2 to 7 were concerned.
So far as defendant No. 1 was
coriccrned the
decree for the full
amount
rcmainCd as it
was.
Defendant No. 1 thereupon applied for scaling
down, but his
S.C.R.
SUPREME COURT REPORTS
293
application
was
rejected.
Defendants
Nos.
2
to 7 dcopsitcd
certain amounts and got their
properties released.
Defendant
No. 1 deposited the balance of the amount that remained due
under the decree as scaled down on the application of defendants
Nos. 2 to 7,
and prayed that full satisfaction of the decree may
be recorded. · The Subordinate Judge
rejected
this application
but the High Court, on appeal, held that defendant No. I was
entitled to the benefit of the scaling down in favour of defendants
Nos. 2 to 7, as the mortgage
debt was one and indivisible.
On
further appeal :
Held, that the ratio dccidendi of the cases in which it was held
that a purchaser of mortgaged properties was entitled to the benefit of a decree which has been scaled down, even diough the purchaser himself was not an agriculturist was not applicable to the
present case.
According to the plain provisions of the Act, there
was no objection to a decree for a reduced amount being passed
against an agriculturist debtor, while the same relief is not given
to his co-debtors,
and defendant No. 1 was not entitled to claim
the benefit of ·the scaling down of the decreC-: debt in favour of
defendants Nos.
2 to 7.
Judgment of the Madras High Court reversed.
Ramiet v. Srinivasiah [(1940) 2M.L.J. 872] referred.to.
Arunachalam Pillai v. Seetharam [(1941) I M.L.J. 561'!.
Pachigola
v.
Karatam
[1242) 1 M.L.J. 506],
Subramaniam
v.
Ramchandm [ (1946) :?. M.L.J. 429] distinguished.
CIVIL
APPELLATE
JuRISDIC'fION: :
Appeal
(Civil
Appeal No. 32 of 1950), from a judgment and order
of the J1igh Court of Judicature at Madras dated 5th
January, 1948, reversing an order of the District Judge
of East Tanjore in aμ application under s. 47 and
0. XXI, r. 2, of the Civil Procedure Cpde.
R. K. Kesava Aiyangar (T. K. Sundal'araman, with
him) for the appellants.
S. Ramachandra Aiyar for the respondant.
1951.
March 5.
The judgment of the Court was
delivered by
MuKHERJEA J.-This appeal is on ·behalf of the
decree-holders in a mortgage suit and it is directed
against a judgment and order of a Division Bench of
the
Madras High Court dated January 5,
1948, by
1951
v. RamasllHlm
Ayyangar an.,
Others
v.
T. N. V.1'ailota
T~vtll'.
Milk!u1j1a J.
1951
V. Ramaswami
Ayyatrgar and
Otleers
v.
7·, N. V. Kailtua
Tkevar.
294
SUPREME COURT REPORTS
[1951]
which the learned Judges reversed, on appeal, on order
of the District Judge of East Tanjore made in a prc>-
ceeding under section 47 and Order 21, . rule 2, of the
Civil Procedure Code.
The materials facts are not in controversy and may
be briefly stated as follows. The appellants before us
are the representatives of three original plaintiffs who,
as mortgagees, instituted a suit (being O.S. No. 30 of
1934) in the Court of the District Judge, East Tanjore,
for enforcenient of a mortgage, against
the present
respondent, who was defendant No. 1 in the suit, and
six other persons.
The mortgage bond, upon which· the
suit was' brought, was executed by defendant No. 1 for
himself and his minor undivided brother, the defendant
No. 2, and also as authorised agent on behalf of defendants 3 to 7 who were interested in a joint family
business.
The suit was contested by all the defendants
except defendant No. 1, against whom it proceeded ex
parte, and there was a preliminary decree passed on
May 15,
1937, by which a sum of Rs.
1,08,098 was
directed to be paid by defendant No. l and defendants
3 to 7, in default of which the plaintiffs were declared
entitled to apply for a firial decree for sale of the
mortgage
properties, and
the suit
was dismissed
against defendant No. 2.
Against this decree, two
appeals were taken to the Madras High Court, one by
defendants 3 to 7-being Appeal No. 48 of 1938-who
contended that the mortgage was not binding on them
or on their shares in the joint family property; and
the other by the plaintiffs-being Appeal No. 248 of
1938-who challenged the propriety of the judgment of
the trial judge in so far as it dismissed ·their claim
against defendant No. 2.
During the pendency of these
appeals; the Madras Agriculturists' Relief Act (Act
IV of 1938) came into force and applicat'ions were made
by defendants 2 to 7 to the High Court, praying that in
the event of a decree being passed against them, the
decretal debt might be scaled down in accordance with
the provisions of the Act.
The defendant No. · 1, who
did not appear at any stage of the proceeding, did not
make any such application.
The H1gh Court forwanled
S.C.R.
SUPREME COURT REPORTS
295
these
applications to the lower court for_
enquiry
i nro the matrer and for return, with its finding on the
question as to whether the applicants were agriculturists, and if so. to what extent, the decretal dues
should be scaled
down.
The District Judge,
after
making enquiries, submitted- a finding that the applicants were agriculturists and that the debt, if scaled
down,
would
amount to
Rs.
49,255 with interest
thereupon at 6% per annum from 1st October, 1937,
exclusive of costs.
On receipt of this finding, the
appeals were set down for final
hearing and by their
judgment dated -March 25,
1942, the learned Judges
of the High Court accepted
the finding of the court
below and held that defendants 2 to 7 were entitled to
have the debts scaled down; but as no application had
been made on behalf of defendant No. 1, he was held
entitled to no relief under the Act.
A decree was
drawn up in accordance with_ the judgment.
The
amount due by defendants 2 to 7 was stated to be
Rs.
49,255 with interest .thereon at 6% per annum;
while, so far as defendant No. 1 was concerned, the
decree of the trial judge was affirmed subject to a slight
modification regarding - the rate of
interest.
The
-defendant No. 1 thereupon filed an application in the
court of the District Judge, East Tanjore, claiming
relief
under the
Agriculturists'
Relief Act alleging
that he too
wa~ an agriculturists and hence entitled to
the benefits of the Act.
The application was dismissed
-on February 25, 1943, on the ground that as the decree
had already been passed by the High Court definitely
negativ'mg his claim to any relief under the Agri<tulturists' Relief Act, such application was not entertainable by the lower court.
The next step taken by the
defendant No. 1 was to file on application in the High
Court itself, praying for setting aside ex parte decree
which excluded him from the benefits of Act IV of
1938. This application
was rejected
by the
High
Court on December 13, 1943.
A_s no payment was made in accordam:e with the
·preliminary decree passed by the High Court, a final
·decree
in terms of the same was passed by the
1951
V. Ramtiswami
Aiyan ""' a•d.
• Oth~rs
,-.
-r. N. V. Kail<M!l.
-rhevar.
1951
V. Ramaswami
Ayyangar and
Other.f
v.
T. N. V. Kailasa
Tlu:var.
Mukhnjta J.
296
SUPREME COURT REPORTS
[1951)
. District Judge on September 25, 1943.
Proceedings
for
execution of' this final decree were started on
August 16, 1944, in E. P. 2 of 1945 of the court of
the District Judge, East Tanjore.
Two lots of the
mortgaged properties were put up to sale and purchased by the decree-holders for a total sum of Rs.
12,005
on July 15,
1946.
.The
sale was
confirmed on
August 17, 1946, and part satisfaction of the decree
was entered for that
amount.
Apparently,
certain
terms
of settlement were thereafter offered by the
judgment-debtors.
The estate of the decree-holders was
in the hands of the Receivers and from the Receivers'
report dated January 10, 1947, it appears that the
Receivers agreed with the sanction of the court, to
receive Rs. 24,000 only from or on behalf of defendant
No. 2 and release him and his share of the mortgaged
property
from the decretal charge.
Likewise, the
Receivers were agreeable to receive Rs. 48,000 from
defendants 3 to 7 and to release them and their properties from the decretal debt.
With regard to defendant No. 1, the proposal, which seems to have been
accepted by the Receivers, was that th~ amount
payable by him under the decree was to be settled at
Rs. 37,500
and
one Yacob Nadar would pay· this
amount on his behalf on consideration of- the decree
against defendant No. l being assigned to him by the
Receivers excluding the rights of the latter to execute
the decree against defendants 2 to 7 as scaled down by
the High Court.
The records of the execution case show that on
January 20, 1947, a sum of Rs. 24,000 was paid on
behalf of defendant No. 2; and his properties, namely,
lots 2 and 6 were exonerated from the decree.
On
January 27, 1947, a sum of Rs. 30,000 was paid by
defendants 3 to 7 and on February 17 following, they
paid a further sum of Rs.
18,610-12-0.
These three
amounts aggregated to Rs. 72,610-12-0.
Nothing was
done towards the payment of the sum of Rs. 37,500 by
defendant No. 1 or by Yacob Nadar, but on March 6,
1947, the defendant No. l deposited in court a sum of
Rs. 3,215 and put in a petition under section 47 and
'
S.C.R.
SUPREME COURT REPORTS
297
Order 21, rule 2, Civil Procedure Code, praying that as
the amount thu5 deposited together with the payments
already made completely wiped off the amount due
under the decree as scaled down by the High Court in
farnur of defendants 2 to 7, full satisfatcion of the
decree might be recorded exonerating the mortgaged
properties and also the defendant No. 1 himself from
any further liability in respect of. the decretal debt.
The position taken up by defendant No; · 1, in substance, was that the:: mortgage debt was one and indivisible and even though different amounts were men·
tioned as payable by two groups of defendants in the
decree, the decree-holders were bound under the terms
of the decree to release the entire mortgaged property
even on· payment of the amount directed to be paid
by defendants 2 to 7.
In other words, even though the
defendant No. l's application for relief under the
Madras Agriculturists' Relief Act was expressly rejevted and he was held liable for the entire amount of the
mortgage debt, he would still be entitled to avail himself
of the benefit of the scaling down of the decree in favour
of defendants 2 to 7.
This contention was negatived
by the District Judge, but was accepted by the High
Court on appeal, who allowed the application of
defendant No. 1 and directed that the court below
should enter up full satisfaction of the motgage decree.
It is
against this
judgment that the · decree-holders
have come up on appeal to this court.
The learned Judges.of· the High Court observed at
the outset that in the working of the Madras Agriculturists'
Relief Act alongside the provisions of the
Transfer of Pmperty Act several curious and novel
situations had arisen for which it was not possible always to ·find logical solutions.
They then proceed~d to
discuss the various decisions of the Madras High Court
which had a bearing on this point and the conclusion
which they reached may be summed up in their words
as follows :-
"It is no ,doubt. somewha.t odd /that when a person
is declared liable to pay a larger :imount he should on
1951
v. Rama.iwami
Ayyangar tUUl
Othtis
v.
T. N. V. Kaildia
T/ui;ar.
J,ftiklurjta J.
1951
Y. RamtUwansi
~ yyan1or antf
Ollrtrs
v.
T . .N. Y. Kailasa
Thtvar.
Mukhtrj1a J.
298
SUPREME COURT REPORTS
[1951]
payment or tender of a ·smaller amount get his property exonerated from liability but this is inherent in
and arises out of the proposition established by the
decisions already dealt with, namely, that by the
application of the principle of unity and indivisibility
of a mortgage decree a non-agriculturist can indirectly
get relief which he cannot directly get".
It seems to us that the High Court's appr~ach to the
case has not been a proper one and the conclusion it
has reached cannot be supported in law.
The learned Judges appear to have overlooked the
fact that they were sitting onlv as an executing -court
and their duty was to give effect to the terms of the
decree that was already passed and beyond which they
could not go.
It is true that they were to interpret the
decree, but under the guise of interpretation th(.y could
not make a new decree for the parties.
As said above, the mortgage decree was scaled down
by the High Court jn favour of defendants 2 to 7 only
and the amended decree directs that the said defendants do pay into court the sum of Rs. 49,255 with
certain interest and costs on payment of which the
plaintiff was to bring into court all the documents in
his power or possession relating to the mortgage and
reconvey or retransfer the property if so
required.
So
far as defendant No. 1 is concerned, the decree states
in dear and express terms that he is to pay the sum
of Rs. 1,05,000 and odd and 'it is on payment of this
sum only that redemption would be allowed of the
mortgaged property. If the decision of the High Court
is correct, this direction in the decree would be manifestly unmeaning and without any effect: What is said,
however, on behalf of the respondent is that he is not
claiming any benefit in violation of this clause.
By
virtue of the decree against defendants 2 to 7 being
satisfied, the entire mortgaged property would, by force
of the very decree, be freed from the debt and if the
respondent gets any benefit thereby, such benefit would
be merely incidental or consequential in its nature.
The
High Court agreed in substance with this contention
I
S.C.R.
SUPREME COURT REPORTS
299
and based its decision entirely upon the view that by
operation of the principle of indivisibility of the mort;
gage decree, a non-agriculturist debtor, whose debt has
not been scaled down under the provisions of . the Agriculturists' Relief Act, may ind'irectly get the benefit of
the relief which has been granted to his agriculturist
co-debtor under the provisions of the Act.
The general law undoubtedly is that _a mortgage
decree is one and indivisible and exceptions to this
rule are admitted in special circumstances where the
in_tegrity of the mortgage has been disrupted at the
instance of the mortgagee himself; e.g., when there is
severance of the interests of the mortgagors whh the
consent of the mortgagee or a portion of the equity of
redemption is vested in the latter.
It is to be: noted,
however, that the Madras Agriculturists' Relief Act is
a special statute which aims at giving relief not to
debtors 'in general but only to a specified class of debtors, viz., those who are agriculturists as defined in the
Act.
To this extent it trenches upon the general law
and section 7 of the Act expressly provides that "notwithstanding any law, custom, contract or decree of
court to the contrary, all debts payable by an agriculturist at the commencement of this Act shall be scaled
down in accordance with the provisions of this chapter". Thus in case of a mortgage debt when the loan
has been advanced to more than one person, if one of
the debtors happens to be an agriculturist while others
are not, the agriculturist debtor would certainly be
entitled to have his debts scaled down under the provisions of the Act in spite of the provision of general
law which prevents a mortgagor from denying the.
liability of the interest which he owns in the mortgaged
property to satisfy the entire mortgage debt.
There is,
therefore,
nothing wrong in law in scafing down a
mortgage decree in favour of one of the judgmentdcbtors, while as regards others the decree is kept intact.
The Madras High Court expressly adopted this
view in Ramier v. Srinivasiah (1), which is one of the
{I) [1940] 2 M. ;L; J. 872.
39
1951
V. Ramaswami
Ayyangar and
0th.rs
v.
T. N. V. Kailasa
Thevar,
MuklierjM J.
1951
Ramaswami
.d_yyangM attrl
Olhtr.r
v
N. V Kailasa
Thtvar.
11.khtrj•• J.
300
SUPREME COURT REPORTS
[1951]
decisions referred to in the judgment appealed from.
The fact that in that case it was a puisne mortgagee
and not a mortgagor whose application for relief· under
section 19 of the Madras Agriculurists' Relief Act · was
allowed, does not make any difference in principle.
The puisne mortgagee- was made a party defendant in
the suit instituted by the first mortgagee to recover
his dues and as the puisne mortgagee was liable to pay
the debt due to the first mortgagee, he was held to be
a debtor· and hence entitled to claim the benefit of
section 19 of the Agriculturists' Relief Act.
It may be
mentioned here that section 14 of the Madras Agriculturists' Relief Act which provides for separation of a
debt incurred by a Hindu family,. some members of
which are agriculturists while others are not, affords a
cle¥ indication that the splitting up of a debt in such
circumstances is quite in accordance with the scheme
of the Act.
·
. The catena of cases upon which the learned Judges
of the High Court relied in support of their decision
seems to proceed on a different principle altogether
and whether that principle is. right or wrong, it has,
in our opinion, no application to a ease like . the
present.
In this class of cases, . the mortgagors were
agriculturists and hence entitled to have their debts
scaled. down under the Agriculturists' Relief Act, but
thece were purchasers of the mortgaged property who
were not agriculturists, :μid the question arose whether
a purchaser could get the benefit of the debt scaled
down in favour of the original debtors.
This question
was answered in the affirmative.
The reason for taking
this view was thus given by the learned Judges in
Arunt1ehalam
Pillai v. Seetharam(1) where the purchase of the equity of redemption was at ·an execution
sale :-
"When the .12th respondent purchased the propctties in cow;t auction, he took them subjCct, to the burden of the appellant's mortgage and if the burden is
by reason of the P.rovisions of s. 8 referred to al:Xwe
reduced without payment, the purchase proves to fhar
(1) [1941] l M. L.J. 561.
S.C.R.
SUPREME COURT REPORTS -
301
extent an a<lvantageous one, and there is nothing in
the Act to <leprive him of the fruits of his lucky purchase, even thougli he is not an agriculturist.
He gets
the benefit of the scaling down not because the provisions of the Act apply to him, for obviously they do
not, but because such benefit is a necessary incident of
his purchase w1der the general law and the Act does
not deprive him of it."
A somewhat different reason was assigned in Panchigola v. Karatam(1) which however was a case where a
portion of the equity of redemption was transferred to
a purchaser by a private sale.
It was held that the court
by allowing the mortgagor to redeem the mortgage
sale . was not conferring on the puchaser, a non-agriculturist, the benefit of the Act, as he would have to
. refund to his vendor the purchase money reserved
with him which as a result of the scaling down he
would not have to pay to the mortgagee.
In both these
cases, the question was raised in the proceeding for
scaling down of the decree under the provisions of the
Agriculturists' Relief Act itself and not at the execution
stage.
There is however the case of Subramanian v. Ramachandra( 2 ), where the question arose
in course of execution proceedings and a purchaser of
a portion of the equity of redemption was held to be
entitled to the benefit of the scaled down decree in
favour of the mortgagors, although his own application for relief under the Act was refused.
It is not
necessary for purposes of this case to . express any
opinion as to the correctness or otherwise of these
decisions.
It is enough to say that the ratio decidendi
in all these cases is not applicable to the case before us.
In the present case there is no pur.chaser of the
mortgaged
property
and consequently there is no
question
of the purchaser, who is not an agriculturist
himself, being entitled to the benefit of a decree which
has been scaled down in favour of the agriculturist
mortgagor.
Here the
judgment-debtors
are
the
mortgagors
themselves and
according to the plain
provis1ons of . the Agriculturists' Relief Act there could
(1) [1942] l M. L.J. 506.
(2) [1946] 2 M. L.J. 429.
1951
V. Rama>wami
Ayyangar and
Others
v.
T. N. Y. /i'ailasa
T1"6ar.
1951
v. Ramaswami
Ayyangar antf
Othlrs
v.
T. N. V. Kailasa
Thtuar.
M•kherjea J.
302
SUPREME COURT REPORTS
f 1951) .
not be any objection to a decree for reduced amount
being passed against an agriculturist debtor, while the
same relief is not given to his co-debtors who do not
fulfil that description.
Some exception could undoubtedly be taken to the
form and wording of the decree that has been passed
in the present case.
The decree, in our opinion, should
not only have stated the amount payable by defendant
No. 1 and that by defendants 2 to 7 separately but
.should have expresdy directed that on payment of
the amount directed to be paid by defendants 2 to 7
their interest alone in the mortgaged property would
not be liable to be sold.
The further direction should
have been that in case they did not pay this amount,
the whole of the mortgaged property including their
interest would be sold for the entirety of the mortgage
debt for which defendant No. 1 was made liable.
It is
true that the decree contains no such clear directions
but reading the decree as a whole and having regard to '
the actual decision in the case, this must be taken to
be its plain implications.
The subsequent agreement
between the parties arrived at in course of the execution proceedings by which the decree-holders agreed to
release· the interest of defendant No. 2 and that of
defendants 3 to 7 separately on payment of certain
specified amounts by them proceeds clearly on · the
assumption that the mortgage debt and the security
have been split up, and in our opinion it is not possible
for the defendant No. 1 to contend that the mortgage
debt remained indivisible.
Our conclusion is that the
view taken by the District Judge was right and should
not have been disturbed .
.
The result .is that the appeal is allowed, the order
of the High Court rs set aside and that of. the District
Judge restored.
We ,make no orner as to costs of
this :q>peal.
·
Appeal allowed.
Agent for the appenants : M. S. K. Sastri.
Agent for the respondent : M. S. K. AiY"F·