S.K. Das, J.

1. In this appeal, pursuant to special leave against the judgment and order of the High Court of Madras, the question for decision is Whether the appellant who claims to be an agriculturist debtor is entitled to apply for scaling down of his decretal debt under the provisions of the Madras Agriculturists Relief Act (Mad. IV of 1938), hereinafter called the Act, as amended by the Madras Agriculturists Relief (Amendment) Act (Mad. XXIII of 1948), hereinafter called the amending Act.

2. The facts which have led to this appeal are that a partnership firm, briefly described as M. Ar. Firm, whose partners were Arunachalam Chetty, his two sisters and Subramaniam Chetty, was carrying on the business of money lending. On the death of Arunachalam Chetty on 6-7-1916, Subramaniam Chetty, one of the surviving partners, took over the assets of the dissolved partnership firm at a valuation of Rs. 25,000 and carried on the business under the name and style of Pl. S. firm of which the partners were Subramaniam Chetty, Vellachi Achi, his two daughters and in 1919 Palaniappa, Chetty, father of the appellant, joined the partnership. The amount of Rs. 25,000 was credited in the accounts of the new partnership. On 19-4-1919, the accounts showed a balance of Rs, 16,369-12 as being due to the share of the decease Arunachalam Chetty which by the year 1935 swelled up to a figure of Rs. 55,933-15. Subramaniam Chetty died in 1924 and the business was carried on after his death by his widow Lakshmi Achi and her daughter and Palaniappa Chetty. In l930 Palaniappa Chetty died and his sons joined the business in his place. Disputes arose between the partners in 1935 which were referred to arbitration and under an award given on 31-7-1935, Arunachalam Chetty and his sister were directed to pay to the estate of M. Ar. Rs. 34,958- 11-6 and the defendants, now appellant and his brother, a sum of Rs. 20,975-3 and corresponding entries were made in the account books of PI. S, Firm. In 1944 the plaintiff, now respondent, as the adopted son of Arunachalam Chetty filed a suit for recovery of the amount which the award had directed the defendants to pay. The defendants were the two sons of Palaniappa Chetty. They denied the adoption of the respondent to Arunachalam Chetty and also pleaded the bar of limitation.

3. The trial Court held the adoption to be invalid and upheld the plea of limitation. The plaintiff took an appeal to the High Court which held the adoption to be valid and also held the suit to be within limitation. It remitted the case to the trial Court for determining certain issues and after the findings were received, the suit was decreed on 9-3-1951, for a sum of Rs. 26,839-15-9. The appellant applied to the High Court for leave to appeal to this Court and also applied for stay. Leave was granted but stay was refused; as no security was furnished under the rules, the High Court later revoked the certificate granting leave.

4. During the pendency of the appeal in the High Court, the Act of 1938 was amended by the amending Act by which new reliefs were given to agriculturist debtors. On 5-10-1951, the appellant made an application to the trial Court for scaling down the decretal debt under S.19 (2) of the Act which was added by the amending Act. The trial Court held that the decree could be scaled down under S.19 (2) of the Act, but it had no jurisdiction to grant that relief as the decree sought to be scaled down had been passed by the High Court. Against this order the appellant took an appeal to the High Court on 4-7-1952, and also made a separate application in the High Court for scaling down the decretal debt under S. 19 (2) of the Act. The High Court dismissed the application on 25-3-1953. The appellant then applied for leave to appeal under Art.133 of the Constitution but this was refused on 6-10-1953, and this Court granted special leave on 19-4-1954.

5. The ground on which the High Court refused relief tinder S. 19 (2) of the Act was that "the retrospective operation of S. 19 (2) was controlled by S. 16 of the Act XXIII of 1948" and that cl. (ii) of S.16 applied and as the appellant whose appeal was pending at the commencement of the amending Act did not apply for scaling down before the decree was passed although he had the opportunity to do so, his application subsequent to the decree was barred by the principle of res judicata. The provision of S.19 (2) of the Act which gave the right to obtain relief of scaling down notwithstanding the provisions of the Code of Civil Procedure to the contrary was held inapplicable, because S.19(2) of the Act was itself "limited by the provisions of S. 16 of Act XXIII of 1948." The High Court observed that although the appellant had filed an additional written statement claiming relief under the Burma Debt Laws, no prayer was made for any relief under the Act. The High Court said:

"A party who had an opportunity to raise a plea but did not raise the plea is precluded by principles of res judicata from raising the plea over again at a subsequent stage. But it is said that the principle of res judicata has no application to the present case as S.19 (1) which is incorporated by reference in S.19 (2) says that a petitioner would be entitled to the relief given to him under that section notwithstanding anything stated in the Code of Civil Procedure. But this argument ignores the fact that the scope of S. 19 (2) is itself limited by the provisions of S. 16 of Act XXIII of 1948."

The High Court then referred to the Full Bench judgment in Sriramreddi v. Sriramreddi, ILR (1942) Mad. 346 [LQ/MadHC/1941/327] ; (AIR 1941 Mad. 929 [LQ/MadHC/1941/293] ), where at p.354 (of ILR Mad.) : (at p. 932 of AIR,) it was said:

"But it the application is not made before the judgment is delivered, it will be too late for a judgment-debtor to raise the question. The final judgment and the decree must be drawn up in accordance therewith."

But it is unnecessary for us to go into the effect of that judgment in the present case, because it dealt with a different situation and related to proceedings when the Act had not been amended.

6. The object of the Act as is shown by its preamble was to relieve an agriculturist of the heavy burden of indebtedness in the province (now State) of Madras. With that object in view provisions were made in the Act to scale down certain debts, as defined in the Act, of the agriculturist debtors. See T. N. Krishna Iyer v. Nalla Thambi Mudaliar, 1955-l Mad L J 215. The extent of scaling down of the debts and the procedure therefor were laid down in the Act. Section 19 made provision for scaling down of decrees. As the scope of relief under this section was limited to debts and decrees anterior to the commencement of the Act in March,1938, the objective to be achieved i. e., of giving relief to the agriculturist debtors remained unrealised and therefore the Legislature again stepped in and passed the amending Act, which commenced on January 25,1949, the object of which was to give further relief in the case of debts incurred before the commencement of the Act but where the decree was passed after such commencement and secondly, where both the debt incurred and the decree passed were of a date after the Act. By the amending Act several amendments were made in the Act which were made applicable to suits and proceedings set out in S. l6 it the amending Act. One such amendment was the addition of S. 19 and the amendment of S. 19 of the Act which was renumbered as S. 19 (1). This section which provides for scaling down of decrees, is as follows :

S.19 (1). "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 judgment-debtor who is an agriculturist or in respect of a Hindu joint family debt, on the application any member of the family whether or not he is the judgment-debtor or on the application of 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 respect of any such decree shall first be applied in payment of all costs as originally decreed to the creditor.

(2) The provisions of sub-section (1) shall also apply to cases where after the commencement of his Act a Court has passed a decree for there payment of a debt payable at such commencement."

Counsel for the appellant has contended that (1) the High Court had erred in its interpretation of S.16 (ii) of the amending Act, (2) had not given effect to the beneficial provisions of S.19 (2) of the Act, and (3) had erroneously applied the principles of res judicata and thus impaired the efficacy of S. 19 which affords relief to an agriculturist debtor notwithstanding the provisions of the Code of Civil Procedure to the contrary. It is necessary to refer at this stage to the amending Act, which came into force on January 25, 1949. Section 16 of this Act provides :

S. 16. "The amendments made by this Act shall apply to the following suits and proceedings, namely .

(i) all suits and proceedings instituted after the commencement of this Act;

(ii) all suits and proceedings instituted before the commencement of this Act, in which no decree or order has been passed, or in which the decree or order has not become final, before such commoncement.

(iii) all suits and proceedings in which the decree or order passed has not been executed or satisfied in full before the commencement of this Act: Provided that no creditor shall be required to refund any sum which has been paid to or realised by him before the commencement of this Act."

Unfortunately, the language of S.16 is not very clear and lends itself to difficulties of interpretation.We agree with the High Court that S. 16 of the amending Act in the amendments made by that Act in the sense that those amendments apply to the suits and proceedings described in the three clauses of S. l6. Sub-section (2) of S. 19 was one of the amendments which was inserted by the amending Act and therefore the appellant-debtor must establish that he is entitled to relief under sub-s. (2) of S. 19 because his case comes under one of three clauses of S.16. The High Court held that cl. (ii) of S. 16 applied in the present case but the appellant-debtor could and should have raised the plea for relief under the Acts. when the appeal was pending in the High Court and as he did not do so, he was barred from claiming relief under S.19 (2) on the principle of res judicata. We do not think that this view is correct and our reasons are the following.

7. The three clauses of S. 16 are independent of each other and cl. (1) refers to suits and proceedings instituted after the commencement of the amending Act, the relevant date being January

25. 1949. Clause (i) has no application in the present case and need not be further considered.Clause (iii), it seems clear to us, applies to suits and proceedings in which the decree or order passed had become final, but had not been executed or satisfied in full before January 25, 1949: this means that though a final decree or order for repayment of the debt had been passed before January 25, 1949, yet an agriculturist debtor can claim relief under the Act provided the decree has not been executed or satisfied in full before the aforesaid date. It should be remembered in this connection that the word debt in the Act has a very comprehensive connotation. It means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue Court or otherwise. etc. It is, therefore, clear that the word debt includes a decretal debt. On the view that cl. (iii) applies in those cases only where a final decree or order for repayment of the debt had been made before January 25, 1949, it has no application in the present case; because the decree for repayment of the debt was passed on March 9, 195l., which was after January 25, 1949.

8. We then go to cl. (ii ), This clause is in two parts and talks of two different situations; one is when no decree or order has been passed and the other is when the decree or order passed has not become final. There is, however, a common element, and the common element is that cl. (ii) refers to suits and proceedings instituted before January 25, 1949. Now, the argument which learned counsel for the appellant has presented is this. He says that the common element referred to above is satisfied in the present case, because the suit was instituted long before January 25, 1949. He then says that no decree or order for repayment of the debt having been passed before March 9, 1951, the first situation envisaged by cl, (ii) arose in the present case and the appellant-debtor was entitled to avail himself of all or any of the amendments made by the amending Act, including the amendment made in S.19 by the insertion of sub-s. (2) thereof. In the alternative, he says that if the word decree or order means any: decree or any order, even then cl, (ii) applies, because the decree of dismissal passed in the suit had not become final on January 25,1949, for an appeal was then pending. We do not think it necessary to consider the alternative argument of learned counsel for the appellant;because we are of the view that having regard to the other provisions of the Act, the words "decree or order" occurring in cl.(ii) must mean decree or order for repayment of a debt. What then is the position before us As we see it, the position is this. Here is a suit which was instituted before the commencement of the amending Act, namely, January 25,1949. The suit was pending on that date and no decree or order for repayment of the debt had been made by that date. The decree for repayment of the debt was made some two years after, on March 9, 1951 Therefore, the two conditions laid down for the first part of cl. (ii) are present and it clearly applies to the present case. The High Court recognised this, but thought that the appellant-debtor could ask for relief at only one stage, namely, when the appeal was pending and before a decree had been passed and if the appellant-debtor did not do so, he was barred from claiming any relief on the principle of res judicata. It is here, we think with great respect, that the High Court has gone wrong. The relief under S. 19 (2) in, terms, is a relief which can be claimed after a decree for repayment of the debt has been passed. It says that the provisions of sub- s.(1) shall apply to cases where, after the commencement of the Act, a court has passed a decree for the repayment of a debt payable at such commencement. The commencement of the Act referred to in S. 19 (2) is the commencement of the main Act, (Mad. IV of 1938). It is not disputed that the debt in the present case was payable at such commencement and the court had passed a decree for repayment of that debt after such commencement. Section 19 (2) in terms applied, and by reason of the provisions of sub-s. (1) of S.19 which were also attracted to the present case, the appellant-debtor was entitled to the relief asked for notwithstanding anything contained in the Code of Civil Procedure, 1908. It is true that the doctrine of res judicata is a doctrine of wide import- and S. 11 of the Code of Civil Procedure is not exhaustive of it. There is high authority for the view that the principle of res judicata may apply apart from the limited provision of the Code of Civil Procedure, but the question before us, as we see it, is no so much the application of the principle of res judicata, as the proper construction of S. 19 of the Act and cl. (ii) of S. 16 of the amending Act. In our opinion, S. 19 in express terms entitles the appellant-debtor to claim a relief under the provisions of the Act when court has passed a decree, after the commencement of the Act, for the repayment of a debt payable at such commencement.

9. The question. then is - does cl. (ii) of S. 16 take away that right We are unable to see how it does. We have already expressed the view earlier that the two conditions for the application of the first part of cl. (ii) of S. 16 are fulfilled in the present case. If that is so, we fail to appreciate how the appellant-debtor can be barred from claiming relief under S. 19 (2) on the principle of res judicata. If the statute in express terms gives him a particular right, we do not see how he can be deprived of it. To hold that the appellant could ask for relief only when the appeal was pending would be to deny him relief under S. 19 (2), which relief he can claim only after a decree for repayment of the debt has been passed. It is true that he might have claimed relief under other provisions of the Act at the stage when his appeal was pending; for example, he might have claimed relief under S. 9. Does that, however, mean that he is precluded from claiming the relief under S. 19 (2) after the decree has been passed We venture to think that the answer must be in the negative. To hold that the appellant-debtor in the present case could ask for a relief only at the pre-decree stage will be tantamount to holding that he is not entitled to relief under S. 19 (2), even though S. 16 says that all the amendments shall apply to suits and proceedings described in the three clauses thereof. If, as the High Court held, the amendments made by the amending Act could be availed of only when the provisions of S. 16 thereof applied and further that cl. (ii) of that section applied to the present suit in its appellate stage, then all the amendments made by the amending Act must apply including the amendment to S. 19. It will be illogical to hold that all the amendments apply save and except sub-s. (2), It may prima facie appear to be anomalous that it should be available to a party to ask for relief under the Act after the passing of the decree, when he had an opportunity of asking for that relief before the decree was passed, but did not do so. The legislature may not have realised that this would be so; but as the amendments stand, it is clear that in cases covered by cl. (ii ) of S. 16 of the amending Act, a party is entitled to ask for relief under the Act at two stages, before a decree for repayment of the debt has been passed and also after such a decree has been passed. Different considerations will however, arise if a party asks for relief under the Act at the pre-decree stage and that relief is refused on the ground that the Act does not entitle him to any relief under it. If a party, even after such refusal, makes a second application, then the principle laid down in Narayanan Chettiar v. Rathinasami Padayachi, A I R 1953 Mad 421, [LQ/MadHC/1952/247] will apply and the second application must fail on the ground that it has already been decided in his presence that he is not entitled to any relief under the Act.

10. One other point has to be referred to in this connection. On behalf of the respondent-creditor it has been pointed out to us that on the date the application for relief under S. 19 (2) was made in the High Court, no suit or proceeding was actually pending, the High Court having passed a decree much earlier, namely, on March 9, 1951. As a matter of fact, the application for relief under S. 19 (2) for scaling down the decree was made in the High Court sometime in 1952.We are of the view that cl. (ii) of S. 16 describes the nature of suits or proceeding in which the amendments shall apply and the pendency of a suit or proceeding on a particular date after January 25, 1949 is not the true test. The true test is whether the suit or proceeding was instituted before January 25, 1949 and whether in that suit or proceeding no decree or order for repayment of a debt had been passed before that date. That test having been fulfilled in the present case, cl. (ii) of S. 16 of the amending Act did not stand in the way of the appellant when he asked for relief under S. 19 (2) of the Act.

11. We now turn to such authorities as have been placed before us. The authorities are not all consistent, and the language of cls. (ii) and (iii) of S. 16 of the amending Act has perhaps led to some of the difficulties of interpretation referred to therein. The earliest decision brought to our notice is the decision in I L R (1942) Mad 346 [LQ/MadHC/1941/327] : (A I R 1941 Mad 929) [LQ/MadHC/1941/293] (supra ). This is a Full Bench decision of the Madras High Court to which we have already referred in an earlier part of this judgment. The next decision is that of Venkataratnam v. Seshamma, I L R (1952) Mad 492 at pp. 498, 499 : (A I R 1952 Mad 591 [LQ/MadHC/1951/343] at p. 593), which is also a Full Bench decision of the Madras High Court. It deals with the construction of clauses (ii) and (iii ) of S. 16 of the amending Act with particular reference to the view expressed in certain earlier cases of the same High Court with regard to cl. (iii) of S. 16. The view expressed in the earlier cases, to which the learned Judges who decided the case out of which the present appeal has arisen were parties, was that cl. (iii) of S. 16 had no application to proceedings in which the decrees and orders had become final before January 25,1949. The Full Bench did not accept that view as correct. Satyanarayana Rao, J., who delivered the judgment of the Court said :

"It cannot be doubted that the two clauses (ii) and (iii) are entirely Independent and are intended to provide for different situations.............

"The view taken by the learned Judges in the Civil Miscellaneous Appeals, already referred to, was that, while the two clauses are independent, clause (iii) has no application to proceedings in which the decrees and orders have become final before the commencement of the Act. It is this view which is also pressed now before us by the learned Advocate for the respondent. While we agree with the learned Judges in holding that the two clauses are independent, we are unable, with great respect, to accept the view that clause (iii) applied only to cases in which the decrees and orders have not become final. It the decree or order has not become final before the commencement of this Act, clause (iii), in our opinion, seems to be unnecessary and as such the case would be covered by clause (ii). Further, It would be difficult to imagine that a decree or order which has not become final can be finally executed or can be finally satisfied. No doubt It is true that, even when an appeal is pending, a decree may be executed and satisfaction may be entered. But all that is only subject to the result of the appeal. If the appeal succeeds or the amount due by the defendant to the plaintiff is increased by the appellate Court, fresh execution has to be started, the satisfaction must be re-opened and the execution must proceed. The Legislature, in our opinion, when it enacted these two provisions, must have intended that , even in the case of decrees or orders which have become final, having regard to the provisions of the new Act, relief should be had by the judgment-debtor so long as the decree or order was not executed or was not satisfied in full before the commencement of the Act. If, however, a decree was executed in part and, before it was fully satisfied, the debt was scaled down under the provisions of the Act, as a result of which the creditor was found to have received more than what he was entitled to, the proviso enacts that in such a situation, the creditor should not be required to refund any sum which has been paid to or realised by him before the commencement of this Act. The question is asked, and legitimately, as to which are the kinds of decrees or orders which have become final and which are sought to be excluded by implication in cl.(ii) of S.16. It is of course not easy to give an exhaustive list of such decrees and orders. It may be that the legislature contemplated that decrees and orders of a declaratory nature, and which are not executable and which have become final before the commencement of the Act, need not be reopened. A reading of the two clauses together would suggest that cl. (iii) would apply exclusively to executable decrees or orders which, though they have become final before the commencement of the Act, are still in the stage of unfinished execution and at the stage at which satisfaction was not fully received. The view which we take, in our opinion, reconciles both the clauses and does not make any of the clauses unnecessary."

We concur in the view expressed above that cl. (iii) of S. 16 applies to decrees or orders which, though they had become final before 25th January 1949; are still in the stage of unfinished execution and at the stage at which satisfaction has not been fully received, and cl. (ii) applies to suits and proceedings which were instituted before 25th January 1949, but in which no decree or order had been passed or the decree or order passed had not become final before that date.We consider it unnecessary in the present case to go into the further question whether cl. (ii) refers to decrees and orders of a declaratory nature, which are not executable but which have become final before 25th January 1949. That is a question which does not fall for decision in the present case and we express no opinion thereon. In Kanakammal v. Muhammad Kathija Beevi, A I R 1953 Mad 188 [LQ/MadHC/1952/18] at p. 189, it was observed :

"The mere fact that the judgment-debtor raised an objection to the executability of the whole decree on the ground that it has to be scaled down is no ground for scaling down the decree and the Court will not be justified in so scaling down without a separate application. This is also another ground for holding that the judgment-debtor is not barred from filing the application to scale down the decree even though he had not raised the question at an earlier stage of the execution proceedings. We are therefore definitely of opinion that an application under S. 19 of the Act is not one which comes under S. 47, Civil Procedure Code, and therefore the principle of res judicata in execution cannot apply to the facts of the present case."

The decision in A I R 1953 Mad 421 (supra) related to a different point altogether, namely, successive applications under S.19 or S. 20 of the Act. In that case the question was whether the judgment-debtor not having filed an application under S. 19 within the prescribed time from the date of the stay order under S. 20 passed on his prior application was precluded from again filing another application under S. 20 followed by an application under S. 19. It was held that he was not so entitled.In Jagannatham Chetty v. Parthasarathy Iyengar, A I R 1953 Mad 777 [LQ/MadHC/1950/282] the question as to the meaning of the word proceedings in S. 16 was considered and it was observed that the word proceeding in S. l6 must relate to proceedings instituted for repayment of a debt and not to execution proceedings which are for enforcement of a decree or order. We greatly doubt whether that is the correct view to take, particularly when the expression debt includes a decretal debt; but as the question does not arise in present case we refrain from making any final pronouncement.In Hemavathi v. Padmavathi, I L R (1954) Mad 891, [LQ/MadHC/1954/27] it was held that the amending Act was retrospective so as even to apply to a debt which had already been scale down once by the application of the Act and even where the rights of the parties had been finally adjudicated by decree or order of a Court, provided that the decree or order had not been executed or fully satisfied. That was held to be the effect of cl. (iii) of S. 16 of the Amending Act. In Lingappa Chettiar v. Chinnaswami Naidu, 1955-1 Mad L J 1 at p. 5 the view taken by Subba Rao and Somasundaram JJ. (the same Judges who decided the present case) in an earlier decision that a party who had an opportunity of getting the beneficent provisions of the Act applied to him before the amendment, but did not avail himself of the same, is disentitled to invoke the provisions of sub-s. (2) of S. 19 was dissented from and Govinda Menon, J., who gave the judgment of the Court, said :

"We do not find any difficulty in holding that sub-s. (2) of section 19 is applicable to cases like the present, and the retrospective nature of that subsection as contemplated by cl. (iii) of S. 16 of Act XXIII of 1948 cannot be restricted or circumscribed by any other clause in that section."

In 1955-l Mad L J 215 (supra) Krishnaswami Nayudu. J, said that the object of S. 16 of the amending Act was to render the application of the amendments to a wide range of suits, both to suits instituted before and after the commencement of the amending Act and to such suits in which the decrees have not only become final but have not been executed or satisfied and so long as something remains to be done out of the decree, the Act could be made applicable.It seems to us that both on authority and principle, the correct view is that the appellant was entitled to the benefit of S. 19 (2) of the Act, read with S. 16 cl. (ii) of the amending Act.

12. These are our reasons for holding that the view taken by the High Court is not correct and the appeal must, therefore, be allowed and the case sent back to the High Court for consideration on merits in accordance with law. The appellant will get his costs of this Court; costs incurred in the High Court before and hereafter will be dealt with by the High Court at the time of the final decision.

13. There were two applications filed by the appellant-debtor for the relief which he claimed. One was filed in the trial Court and the other in the High Court. The trial Court dismissed the application on the ground that the High Court alone had jurisdiction to give such relief. The appellant preferred an appeal to the High Court and also filed an application there. The question which is the proper Court to give relief to the appellant is a matter on which we are making no pronouncement. That is a matter which will be dealt with by the High Court.

14. Appeal allowed.