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PETITIONER:

SRI RANGA NILAYAM RAMA KRISHNA RAO

Vs.

RESPONDENT:

KANDOKORI CHELLAYAMMA alias MANGAMMA AND ANOTHER

DATE OF JUDGMENT:

17/10/1950

BENCH:

FAZAL ALI, SAIYID

BENCH:

FAZAL ALI, SAIYID

MUKHERJEA, B.K.

AIYAR, N. CHANDRASEKHARA

CITATION:

1953 AIR 425 1950 SCR 806

CITATOR INFO :

R 1989 SC2113 (7)

ACT:

Madras Agriculturists' Relief Act (IV of 1938), ss. 3

(D), 8, 10, 19--Sale of estate in execution of

decree--Whether owner ceases to be "Agriculturist" pending

application to set aside sale-Applications to set aside sale

and for relief under Act'Maintainability-Order confirming

sale and granting relief--Legality--C.P.C. (1908), O.XXI, r.

90--Execution sale--Appeal against order refusing to set

aside sale--When sale becomes absolute and title passes-

Receiver--Appointment of receiver, effect of.

HEADNOTE:

In execution of a decree obtained on a mortgage a vil-

lage owned by the mortgagor which was included in the mort-

gage was sold by the court on the 6th July 1935 and it was

purhased by the mortgagee. An application by the mortgagor

under 0 .XXI,.r. 90, C.P.C., for setting aside the sale for

irregulrities was dismissed, the sale was confirmed and full

satisifiction of the decree was recorded, on the 6th March

1943. A few days afterwards the mortgagor and his adopted

son made an application under s. 19 of the Madras Agricul-

turists' Relief Act, 1938, praying for relief under the Act,

and, as this application also was dismissed they preferred

two appeals, one from the order dismissing this application

and the other against the order of 6th March 1943 refusing

to set aside the sale. The High Court of Madras held that,

as the mortgagor's village had been sold he did not come

within the purview of el. (i)) of the proviso to 6. 3 of the

Madras Agriculturists' Relief Act and so he was entitled to

claim relief under the Act and the debt stood discharged

under the provision of the Act, but the Bale was not liable

to be set aside; and in accordance with this judgment the

decree-holder was directed to pay the amount for which the

property had been sold with interest thereon: '

Held per FAZL ALl and MUKHERJEA JJ.--(i)that the conclu-

sions arrived at by the High Court were self-contradictory

because if the sale was effective on the date it was held or

confirmed, the decree was also satisfied on that date and

the judgementdebtors were no longer entitled to invoke the

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provisions of the Act; (ii) that the High Court was not

justified in law in deciding the appeal on the footing that

the judgment-debtors ceased to be owners of the village from

the date of sale and on that account were not hit by cl. (D)

of the proviso to s. 3 of the Act inasmuch as when an appeal

is preferred from an order rejecting an application under

O.XXI, r. 90, C.P.C., to set aside an execution sale, the

sale does not become absolute until the matter is finally

decided by the appellate court.

807

Per CHANDRASEKHARA AIYAR J.--After the execution sale in

1935 the only interest which the judgment-debtors had in the

village was to have the sale set aside under the relevant

provisions of the Civil Procedure Code and this interest,

not being an interest contemplated by s. 3 (ii) (a) & (b)

and s. 19 (1) of the Act, they were not "agriculturists" and

were not entitled to any relief under the Act.

Held also, per FAlL ALl and MUKHERJEA JJ.--A person does

not cease to be a land holder of an estate within the mean-

ing of cl. (D) to the proviso to s. 3 of the Act merely

because the estate is placed in the hands of a receiver.

Bhawani Kunwar v. Mathura Prasad Singh (I.L.R. 40 Cal.

89) and Chandramani Shaha v. Anarjan Bibi (I.L.R. 61 Cal.

945) referred

Judgment of the Madras High Court reversed.

JUDGMENT:

APPELLATE JURISDICTION: Civil Appeals Nos. 56 and 57 of

1949. Appeals from the orders of the High Court of Judica-

ture at Madras (Wadsworth and Patanjali Sastri JJ.) dated

24th October, 1945, in A.A.O. Nos. 372 of 1943 and 634 of

1944 which were appeals from the orders of the Subordinate

Judge of Ellore in E.A. No. 440 of 1937 and C.M.P. No. 152

of 1943 in O.S. No. 87 of 1923.

P. Somasundaram (V. V. Choudhry, with him) for the

appellant.

V. Rangachari (K. Mangachari, with him) for the respond-

ents.

1950. October 17. The Court delivered judgment as

follows.

FAZL ALI J. --These appeals arise out of an execution

proceeding, and the main point to be decided in them is what

is the effect of certain provisions of the Madras Agricul-

turists' Relief Act (Madras Act IV of 1938, which will

hereinafter be referred to as "the Madras Act"), on the

rights of the parties. How this point arises will be clear

from a brief statement of the facts of the case.

It appears that in 1908, one Veeresalingam, the husband

of the first respondent, borrowed a sum of Rs. 9,000 from

one Sitharamayya, and executed a mortgage bond in his fa-

vour. Subsequently a suit was

808

instituted by the mortgagee to enforce the mortgage and a

final decree in that suit was passed on the 19th August,

1926. Thereafter, on the 28th October, 1931,the decree-

holder applied for the execution of the decree by the sale

of the mortgaged property. In 193a, the decree-holder

transferred the decree to one Sobhanadri, after whose death

his son, the appellant before us, was brought on the record

as his legal representative in the execution proceedings.

Several years before the assignment of the decree, Veeresa-

lingam, the defendant, had died and his widow, the first

respondent. was therefore brought on the record as his legal

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representative. On the 6th July, 1935, two items of proper-

ty were sold in execution of the decree and purchased by the

decree- holder, these being :---(1) a village called Tedlam

in in West Godavari District; and (2) 4 acres and 64 cents

of land in Madepalli village. The first property was sold

for Rs. 21,000 and the second for' Rs. 1,025. As, however,

the amount due under the decree was only about Rs. 17,860

and odd, the sale of the second property was subsequently

set aside and the decree-holder deposited into Court the

excess amount of about Rs. 3,000 and odd after setting off

the decretal amount against the price of the first item of

property. On the 5th August, 1935, the first respondent

filed an application under Order XXI, rule 90, and section

47 of the Code of Civil Procedure, to set aside the sale

held in July, 1935, alleging certain irregularities in the

conduct of the sale. That application was after several

years heard by the Subordinate Judge of Ellore, who by his

order dated the 6th March, 1943, dismissed it and directed

the sale of the first property to be confirmed and full

satisfaction of the decree to be entered. After about 12

days, i.e., on the 18th March, 1943, the first respondent

and the second respondent, who had been adopted by the

former on the 12th March, 1936, under the will of her hus-

band and was subsequently brought on record, filed an appli-

cation under section 19 of the Madras Act praying for cer-

tain reliefs under that Act. This application' was dismissed

on the 22nd March, 1943. Subsequently, two appeals were

filed on behalf

809

of the respondents (who will hereinafter be sometimes re-

ferred to as judgment-debtors), one against the order refus-

ing to set aside the sale under Order XXI, rule 90 of the

Civil Procedure Code, and the other against the order dis-

missing the application under the Madras Act. These appeals

were heard together by two learned Judges of the Madras High

Court and they took the view that the judgment-debtors'

application under the Madras Act was maintainable notwith-

standing the fact that the sale had been confirmed and full

satisfaction of the decree recorded, and remitted the case

to the trial Court for a finding on the following

questions, namely

(1) whether the applicants were agriculturists; and

(2) if so, what would be the result of applying the

provisions of Madras Act IV of 1938 to the decretal debt

against them ?

So far as regards the judgment-debtors' appeal against

the order dismissing their application under Order XXI, rule

90, the Learned Judges were inclined to agree with the trial

Court that the sale should stand but declined to pass final

orders in the appeal on the ground that "it would seriously

prejudice the judgment-debtors in the connected application

for relief under section 19 of the Madras Act IV of 1938."

The Subordinate Judge answered the questions referred

to him by the High Court on remand as follows :--

(1) The judgment-debtors were not agriculturists and

were not therefore entitled to the benefits of the Madras

Act;and

(2) If they were agriculturists, they were not liable to

pay anything under the decree, as, in view of the provisions

of the Act, the debt stood discharged on the date of sale.

When however the matter came up before the learned

Judges of the High Court, they reversed the first finding of

the trial Court and held that the judgmentdebtors were

agriculturists within the meaning of the

810

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Act, and that the debt stood discharged in view of section 8

(2) of the Act. At the same time, they held that the sale

was not liable to be set aside, and in this view dismissed

one of the appeals and allowed the other. Then followed

certain proceedings to which it would have been unnecessary

to refer but for the fact that the judgment-debtors have

attempted to rely on "them in support of one of their

preliminary objections to the maintainability of these

appeals.

It appears that on the next day after the judgment of

the High Court was delivered in the two appeals, counsel

for the respondents wrote a letter to the Registrar of the

High Court to direct the posting of the two cases 'for being

mentioned' before the Court in order to obtain necessary

directions consequent on the orders passed by it in the

appeals. This letter was not placed before the learned

Judges until the judgment had been signed by them and ac-

cordingly the judgment-debtors filed two petitions, one

being a review petition to the High Court and the other

being a petition to the trial Court praying "that the de-

creeholder may be ordered to pay to the petitioners the

purchase money of Rs. 21,000 with interest thereon at 6 per

cent. per annum from the date of sale till the date of

payment." The trial Court dismissed the latter petition on

the ground that it was not maintainable, and the judgment-

debtors filed an appeal against the order. The appeal as

well as the review petition of the judgment-debtors were

heard together by the learned Judges who directed the

decree-holder's counsel to elect whether his client would

deposit the purchase money into Court or have the sale set

aside. The decree-holder applied for a short adjournment

and ultimately on the 15th November, 1946, his counsel

stated that his client wished to retain the property which

he had purchased and to pay the purchase money into Court.

Thereupon, he was directed to pay the sum of Rs. 21,000

together with interest within a months from that date.

Subsequently, the appellant (decree-holder) having

obtained leave to appeal from the High Court preferred

811

these appeals before us. It may be stated here that along

with the application for leave to appeal, the appellant had

filed an application for excusing the delay in filing the

former application which he accounted for mainly by refer-

ring to the proceedings for the review of the judgments in

the previous appeals to the High Court. This application

was granted and the delay was condoned.

As has been already stated, the main point arising in

these appeals relates to the effect of the Madras Act upon

this litigation. That Act was passed and came into effect

in 1938, while the execution proceedings were still continu-

ing. It will be recalled that the sale took place on the

6th July, 1935; and the application for setting it aside was

not disposed of until the 6th March, 1943. But, strangely

enough, the judgmentdebtors did not apply for any relief

under the Madras Act during this period, and they made their

application only after the sale had been confirmed and

satisfaction of the decree had been entered. How far this

belated application affects the right claimed by the judg-

ment-debtors under the Act is one of the questions raised in

these appeals, and I shall deal with it after referring to

the material provisions of the Act and the findings of the

High Court which have given rise to several debatable

points.

The sections of the Act which are material for the

purpose of these appeals are sections 3, 8 and 19. Section 3

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defines an agriculturist and has a proviso stating that in

certain cases a person shall not be deemed to be an agricul-

turist. The relevant clause of this proviso, to which I

shall also have to advert later, is clause (D) which runs

thus :--

"Provided that a person shall not be deemed to be an

'agriculturist' if he-

(D) is a landholder of an estate under the Madras Es-

tates Land Act, 1908, or of a share or portion thereof in

respect of which estate, share or portion any sum exceeding

Rs. 500 is paid as peshkash or any sum exceeding Rs. 100 is

paid as quit-rent, jodi, kattubadi,

812

poruppu or the like or is a janmi under the Malabar Tenancy

Act, 1929, who pays any sum exceeding Rs. 500 as land reve-

nue to the Provincial Government. ' '

The precise question which is said to arise with refer-

ence to this provision is whether by reason of being the

owners of village Tedlam, the judgment-debtors should be

held to be not entitled to relief under the Act. The other

material sections 8 and 19 run as follows :--

"8. Debts incurred before the 1st October, 1932, shall

be scaled down in the manner mentioned hereunder, namely:-

(1) All interest outstanding on the 1st October, 1937,

in favour of any creditor of an agriculturist whether the

same be payable under law, custom or contract or under a

decree of Court and whether the debt or other obligation has

ripened into a decree or not, shall be deemed to be dis-

charged, and only the principal or such portion thereof as

may be outstanding shall be deemed to be the amount repay-

able by the agriculturist on that date.

(2) Where an agriculturist has paid to any creditor

twice the amount of the principal whether by way of princi-

pal or interest or both, such debt including the principal,

shall be deemed to be wholly discharged.

(3) Where the sums repaid by way of principal or inter-

est or both fall short of twice the amount of the principal,

such amount only as would make up this shortage, or the

principal amount or such portion of the principal amount as

is outstanding, whichever is smaller, shall be repayable.

(4) Subject to the provisions of sections 22 to 25,

nothing contained in sub-sections (1), (2) and (8) shall be

deemed to require the creditor to refund any sum which has

been paid- to him, or to increase the liability of a debtor

to pay any sum in excess of the amount which would have been

payable by him if this Act had not been passed.

813

Explanation.--Where a debt has been renewed or included

in a fresh document in favour of the same creditor, the

principal originally advanced by the creditor together with

such sums, if any, as have been subsequently advanced as

principal shall alone be treated as the principal sum repay-

able by the agriculturist under this section.

19. Where' before the commencement of this Act, a Court

has passed a decree for the repayment of a debt, it shall,

on the application of any judgmentdebtor who is an agricul-

turist 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, apply the provisions of this Act to such decree and

shall, notwithstanding anything contained in the Code of

Civil Procedure, 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 commencement of this Act, in

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respect of any such decree shall first be applied in payment

of all costs as originally decreed to the creditor."

These sections are material, because in the present case

the judgment debtors asked the decree to be amended under

section 19 of the Act and they were held to be entitled to

relief under section 8.

Having referred to the relevant provisions of the Act,

it becomes necessary now to state the main findings of the

High Court upon which the decision of this appeal will turn.

These findings are-

(1) that the sale of Tedlam village, which was held on

the 6th July, 1935, and confirmed on the 6th March, 19-13,

was a good sale;

(2) that by this sale. the title to the Tedlain village

passed to the decree-hoMer. and in hearing the appeal the

High Court was justified in proceeding on the footing that

the judgment-debtors having ceased to be the owners of

Tedlam village after its sale, were not

104

814

hit by clause (D) of the proviso to section a of the Act;

and

(3) that the decree had been satisfied at the date of the

sale and the decree-holder was liable to repay to the judg-

ment-debtors the full price of the property which was sold.

The main contentions directed against the conclusions

arrived at by the High Court are :firstly, that they are

self-contradictory, because if the sale was an effective

sale on the date it was held or confirmed, the decree was

also satisfied on that date and the judgmentdebtors were no

longer entitled to invoke the provisions of the Madras Act;

and secondly, that the view taken by the learned Judges of

the High Court that notwithstanding the appeal against the

order refusing to set aside the sale they could proceed on

the footing that the judgment-debtors had ceased to be the

owners of Tedlarn village on the date of the sale was un-

sound in law.

It will first deal with the second point which appears to me

to require serious consideration. The High Court has in my

opinion rightly proceeded on the footing that the ownership

of Tedlam village would bring the judgment-debtors within

the mischief of clause (D) of the proviso to section 3 of

the Act, and would disentitle them to any relief thereunder.

This view was contested before us on behalf of the judgment-

debtors on two grounds :---(1) that the grant in favour of

the ancestor of the judgment-debtors did not comprise a

whole inam village and what they owned was therefore not an

estate under the Madras Estates Land Act (Madras Act I of

1908); (2) that on the date of the application, the judg-

ment-debtxrs were not landholders of village Tedlam because

the village was in the possession of a receiver since 1st

February, 1937, and the latter was in law the landholder on

the crucial date. None of these contentions however appears

to me to have any force. The first contention was sought to

be supported by Exhibit P-1 which is a register of inams and

which shows that poramboke or waste lands to the extent of

596 acres had to be deducted from the area

815

of the inam. The point however has been dealt with very

fully and clearly by the learned Subordinate Judge, who has

rightly pointed out that it has no force in view of the

Madras Estates Land (Amendment) Act, 1945 [Madras Act No. II

of 1945]. The second point is equally unsubstantial, be-

cause it is well settled that the owner of a property does

not cease to be its owner merely because it is placed in the

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hands of a receiver. The true position is that the receiver

represents the real owner whoever he may be, and the true

owner does not by the mere appointment of a receiver cease

to be a landholder under the Madras Estates Land Act.

I will now revert to the crucial question in the case,

viz., whether the learned Judges of the High Court were

justified in law in deciding the appeal on the footing that

the judgment-debtors had ceased to be the owners of Tedlain

village and on that account they were not hit by clause (D).

of the proviso to section 3 of the Madras Act. At this

stage, it will be useful to refer to certain provisions of

the Civil Procedure Code which directly bear on the question

as to when title to immovable property which is sold in

execution of a decree is deemed to pass to the purchaser.

One of the provisions is Order XXI, rule 92, which provides

that "where no application is made under rule 89, rule 90 or

rule 91, or where such application is made and disallowed,

the Court shall make an order confirming the sale, and

thereupon the sale shall become absolute." The second rele-

vant provision is section 65 which runs thus :--

"Where immovable property is sold in execution of a

decree and such sale has become absolute, the property shall

be deemed to have vested in the purchaser from the time when

the property is sold and not from the time when the sale

becomes absolute."

In Bhawani Kunwar v. Mathurn Prasad Singh(1) the ques-

tion as to when a mortgagee who has purchased certain vil-

lages in execution of the decree acquired title to the

properties purchased by him directly arose for considera-

tion, and the Privy Council rightly pointed

(1) T.L.R. 40 Cal. 89.

816

out that "the sale in execution of the mortgage decree took

effect from the actual date of the sale and not from its

confirmation." In a simple case, the provisions cited above

should settle the controversy, but, in the present case, the

matter has been complicated on account of the appeal against

the order refusing to set aside the sale under Order XXI,

rule 90. In such a case, generally speaking, the true

position seems to be that there is no finality until the

litigation is finally determined by the appellate Court.

This principle has been recognized in a number of cases, but

it will be enough to cite Chandramani Shaha v. Anarjan

Bibi(1). The headnote of that case runs as follows :--

"Where a Subordinate Judge has disallowed an applica-

tion under Order XXI, rule 90, to set aside a sale in execu-

tion, and has made an order under rule (1) confirming the

sale, and an appeal from disallowance has been dismissed by

the High Court, the three years' period provided by the

Indian Limitation Act, 1908, Schedule I, article 180, for an

application under Order XXI, rule 95. by the purchaser for

delivery of possession runs from the date of the order on

appeal; the High Court having under the Code of Civil Proce-

dure, 1908, the same powers as the Subordinate Judge, the

'time when the sale becomes absolute', for the purpose of

article 180 is when the High Court disposes of the appeal."

Under article 180 of the Indian Limitation Act, the

period of limitation runs "from the date when the sale

becomes absolute." If we give a narrow and literal meaning

to these words, the period of limitation should be held to

run from the date when the original Court of execution

confirms the sale. But, as was pointed out by the Privy

Council, the High Court as an appellate Court had the same

powers as the trial Court and it is only when the appeal was

dismissed by the High Court that the order of the trial

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Court confirming the sale became absolute. Till the deci-

sion of the appellate Court, no finality was attached to the

order confirming the sale.

(1) I.L.R. 61 Cal. g45.

817

It is clear that in this case the same rule would apply

to the order recording satisfaction of the decree and to the

order confirming the sale. If the order recording satisfac-

tion of the decree was not final and remained an inchoate

order until the appeal was decided, the order confirming

the sale would have the same inchoate character. This

position seems to have been fully conceded in the statement

of their case filed on behalf of the respondents in this

Court.

It is quite clear that in this case the learned Judges

of the High Court have taken up an inconsistent position.

As I have already stated, they have held, for the purpose of

allowing one of the appeals, that the judgment-debtors were

not hit by clause (D)of the proviso to section 3 of the Act

because they ceased to be the owners of Tedlain village at

the date of the sale in 1935. If this conclusion is cor-

rect, it must follow as a matter of logic that the decree

was completely satisfied on the date of the sale, because

the sale fetched a larger amount than what was payable under

the decree and the excess amount was deposited by the de-

cree-holder in Court. The sale and satisfaction must go

together and if finality is to be attached to the sale it

should have been held to attach also to the order recording

satisfaction of the decree. It seems clear to me that if the

decree had ceased to exist, no relief could be claimed by

the judgment-debtors under the Madras Act. On the other

hand, if the appeal had to be decided on the footing that

the order recording satisfaction of the decree was not

final, the same approach should have been made in regard to

the effect of the sale. It is also clear that if the decree

was satisfied on the date of sale by the application of the

provisions of the Act, the sale could not stand, because how

could the property be sold in execution of a decree which

had been already satisfied. Yet, notwithstanding the fact

that nothing was due under the decree, the High Court has

held that the sale was a good sale and was to stand. The

correct approach to the case would have been to assume for

the purpose of the appeals that neither of the orders passed

by the

818

Subordinate Judge was final. On that view, the appeals

to the High- Court could not have been decided on the

footing that the judgment-debtors had ceased to be the

owners of Tedlain property and were therefore not hit by

clause (D) of the proviso to section 3 of the Madras Act.

In my opinion, the judgment of the High Court cannot be

sustained, and the appeal s will have to be allowed.

I will now deal very briefly with two preliminary objec-

tions raised on behalf of the respondents. The first objec-

tion is that the application for leave to appeal to his

Majesty in Council against the order of the High Court was

barred by limitation, inasmuch as the reasons stated in the

affidavit filed by the appellant in the High Court in sup-

port of his application for excusing delay do not consti-

tute sufficient reason within the meaning of section 5 of

the Limitation Act. The answer to this objection will be

found in the facts which have been already narrated. The

delay was caused mainly by reason of the review of the

order of the High Court and the High Court considered that

there as sufficient reason for condoning the delay. This

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Court cannot override the discretion exercised by the High

Court and the matter cannot be reopened in these appeals.

The second objection is based on the fact that the decree-

holder was given a choice by the High Court to elect wheth-

er he would deposit the purchase money or have the sale set

aside, and his counsel told the learned Judges on the 15th

November, 1946 that his client wished to retain the property

which he had purchased and pay the purchase money in cash.

It is contended that in view of this statement it was not

open to the appellant to contend that he need not pay any

amount to the judgment-debtors. This objection also is

entirely devoid of any substance,because there is nothing on

record to show that the appellant has consented to be bound

by the order of the High Court and waived his right to

appeal against it by reason of the election.

The learned counsel for the respondents also contended that

the sale should have been set aside by the

819

High Court because the permission given to the decreeholder

on the 16th February, 1934, to bid and set off the decretal

amount against the purchase price was confined to an earlier

sale and did not extend to the sate which took place on the

16th March, 1935, after the upset price which had been

originally fixed was reduced. Personally, I am inclined to

hold that the permission covered the sale in question, but

in any case it is difficult to hold on the facts stated that

there was any such material irregularity as would vitiate

the sale. The precise argument which is put forward here

was advanced in the Courts below but it did not find favour

either with the Subordinate Judge or with the High Court.

Besides, the respondents cannot raise the point in these

appeals because they have filed no appeal against the order

of the High Court upholding the sale.

In these circumstances, I would allow the appeals, set

aside the orders of the High Court and restore the order of

the learned Subordinate Judge. There will however be no

order as to costs in these appeals.

MUKHERJEA J.--I concur in the judgment just now deliv-

ered by ray learned brother, Fazl Ali J., and there is

nothing further which I can usefully add.

CHANDRASEKHARA AIYAR J.--The facts which have cha given

rise to these appeals and the questions for decision have

been stated in the judgment just now pronounced by my

learned brother Fazl Ali J. I wish to add only a few words

on the main contention advanced for the respondents by

their learned Advocate, Mr. V. Rangachari.

If by reason of the confirmation of sale and satisfac-

tion of the decree having been entered up, the title to the

village had passed indefeasibly to the decreeholder, there

was no longer any decree or decree debt to be scaled down.

If, however, the title did not pass, because it was still

open to the respondents to attack the Court sale under Order

XXI, rule 90, they were landholders of the village and, as

such, they would

820

come within the scope of proviso (D) to section 3 of the

Madras Agriculturists' Relief Act, 1938, which enacts that a

landholder who holds a village paying more than Rs. 100 as

quit rent or jodi is not an agriculturist within the meaning

of the Act.

The apparent inconsistency in the view taken by the High

Court was recognised, if not conceded, by the learned coun-

sel. In one view, there ,,as no longer any decree in respect

of which the Agriculturists' Relief Act could operate; and

in the other view, the respondents could not take advantage

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10

of the Act, as their ownership of the village precluded

them. Faced with this dilemma, Mr. Rangachari urged a some-

what ingenious argument. He contended that though the. title

passed to the decree-holder on the confirmation of sale and

became vested in him from the date of the sale, the respo-

dents could still be regarded as having an interest in the

village, as the sale was open or liable to challenge and the

title'of the decree-holder was inchoate or incomplete. There

is, however, really no support for this position. On confir-

mation, the title of the decree-holder became absolute or

complete. If the sale was set aside, the title would revest

in the judgment-debtor. There is nothing like an equitable

title in the decree-holder which could be recognised for

certain purposes and not recognised for others.

Under the Madras Act, "agriculturist" means "a person

who has a saleable interest in any agricultural or horticul-

tural land or one who holds interest in such land under a

landholder as a tenant, ryot or undertenure-holder." Section

10, sub-clause (i) of the Act -provides that the right

conferred on an agriculturist to have a debt scaled down

will not apply to any person who, though an "agriculturist"

as defined in the Act, did not on 1-10-1937 hold an interest

in or a lease or sub-lease of any land. After the sale in

1935, the only interest which the judgment-debtors had in

the village was to have the sale set aside, under the rele-

vant provisions of the Civil Procedure Code. This interest

is not the interest contemplated by section 3, sub-clause

(ii) (a) & (b) of the Act which speaks of a

821

saleable interest or interest as a tenant, ryot or underten-

ure holder.

I agree in the conclusion reached by my learned broth-

er.

Appeals allowed.

Agent for the appellant: M.S. Krishnamoorthi Sastri.

Agent for the respondents: M.S.K. Aiyangar.