(Petition (disposed of on 16-11-1942) under S. 115 of Act V of 1908 praying the High Court to revise the order of the Court of the District Munsif of Nandyal dated 31-3-1941 and made in I.A. No. 7 of 1940 in O.S. No. 790 of 1933.)

Wadsworth, J.

The petitioner was indebted to the respondent under a mortgage deed dated the 28th January 1929. The respondent sued on the mortgage and got a decree on the 31st August 1937. That decree was the subject of an appeal to the District Court. When the Madras Act IV of 1938 came into force, the petitioner filed a petition in the appellate Court praying for relief under the Act in respect of the decree. The petition was posted along with the appeal and on the day on which the learned District Judge dismissed the appeal, he passed an order on the petition to the effect that

the Court which has to be moved for the sealing down of the debt is the Court that passed the decree. I forward the petition and connected records filed in this suit to the learned District Munsif of Nandyal for disposal according to law.

There was no reservation made in the appellate judgment providing that the appellate Courts decree would be subject to the result of the petition which was sent to the District Munsif for disposal. When that petition came up before the District Munsif, objections were taken on the grounds that the petitioner and the respondent both resided in Banganapalli outside British India and that the suit mortgage was executed to secure an account debt incurred in Banganapalle outside British India. At the end of the argument a fresh contention was taken that there could be no scaling down of the decree, since the appellate Courts decree was passed after Madras Act IV of 1938 had come into force. The trial Court upheld all these contentions and the petition was dismissed.

It seems to us that the only contention which requires detailed consideration is that which relates to the difficulty of procedure. The residence of the petitioner will not affect his status as an agriculturist. The definition of an agriculturist imposes the qualification that he should have a saleable interest in agricultural land in the Province of Madras and we feel quite unable to read into this definition any qualifying words with reference to the residence of the agriculturist, such as Mr. Sampath Ayyangar for the respondent suggests should be spelt out of the words agriculturists in the Province of Madras used in the preamble to the Act. The suggestion that this mortgage debt is one which is outside the jurisdiction of the Madras Legislature is also untenable. From the terms of the mortgage it is quite clear that this was not a case of a mere giving of security for a pre-existing debt. The mortgage contract contains all the terms of the liability and imposes conditions which are quite different from those imposed by the pre-existing liabilities, which are discharged under this mortgage. The debt which was the subject of the litigation was the contract of mortgage executed within the Madras Presidency binding a security which is land situated in the Madras Presidency. Such a contract must necessarily be governed by the laws of this Presidencya fact which has been recognised by the respondent himself, who filed his suit in the Court of the District Munsif of Nandyal. The matter is governed by the decision of the Privy Council in The Mount Albert Borough Council case , [( Mount Albert Borough Council v. Australasian Temperance and General Mutual Life Assurance Society (1938 A.C. 224 (P.C.)]. We do not wish to say anything at this stage on the question whether in scaling down the debt the fact that the previous liability which was discharged was a liability incurred outside British India will affect the process; but we are unable to accept the view of the District Munsif on either of the objections taken to the merits of the petition.

Turning now to the difficulties of procedure, we find that the trouble really arose through the action of the learned District Judge in transmitting the petition to the District Munsif, without realising that it was really a petition arising in the appeal with reference to which provision ought to have been made in the appellate judgment. We do not wish to criticise the learned District Judge who shared the difficulty felt by nearly all the Courts in deciding what was the proper procedure to observe in applying this new Act to decrees pending appeal at the time when the Act came into force. At the same time we are clear that this petition should have been treated as a matter arising in the appeal for which a provision would have to be made in the appellate judgment, and when the learned District Judge transmitted the petition to the District Munsif for disposal, he must, we think, be deemed to have remanded to the District Munsif an issue arising in the appeal. It is pointed out that difficulties may arise in execution if the disposal of this petition results in the scaling down of the decree debt, whereas the decree to be executed will be the unamended decree of the learned District Judge in appeal. We are conscious of this difficulty and think that it may well be met by the petitioner applying to the District Judge by way of review to make the necessary provision in the appellate decree for that decree being subject to the order to be passed on the petition under Act IV of 1938. If this is done, no difficulty will arise in execution and we do not think that the petitioner should suffer, he having adopted the proper procedure of filing a petition in the pending appeal from the fact that this petition was sent down for disposal without providing in the appellate judgment for the incorporation of the results thereof. If the petitioner does file a petition for review as suggested, it will of course be necessary for him also to apply to the District Judge to excuse the delay in the rather unusual circumstances of this case.

The learned District Munsif has not given any finding as to the effect of applying the Act to this decree. The civil revision petition is therefore allowed with costs and the application is remanded to the lower Court for fresh disposal in the light of this judgment.