(Appeal (disposed of on 6-3-1945) against the order of the District Court, Madura, dated 2-10-43 and made in A.S. No. 164 of 1943 preferred against the order of the Court of the District Munsif, Tirumangalam dated 12-8-1941 and made in M.P. No. 320 of 1941 in O.S. No. 42 of 1933.)

Wadsworth, J.

The appellant is the third plaintiff in a mortgage suit which resulted in a preliminary decree of 1933 and a final decree of 193

4. He was the contesting respondent in an application filed by the first and the eighth defendants for the amendment of the mortgage decree under S. 19 of Madras Act IV of 1938. It has been held that the eighth defendant is not an agriculturist, though the first defendant is an agriculturist. The mortgage was executed in 1908 by the father of defendants 1 to

4. In 1925, they sold the hypotheca to the fifth defendant, who became an insolvent, and in 1930 the Official Receiver in insolvency resold the hypotheca to the present eighth defendant. At the time when the mortgage suit was filed the personal remedy had become barred, and the mortgagors retained no interest in the hypotheca. The question is whether in such circumstances the first defendant as one of the representatives of the original mortgagor is entitled to get the decree debt scaled down for the benefit of the non-agriculturist purchaser against whom alone the mortgage liability was capable of being enforced at the time when Madras Act IV of 1938 came into force. The learned Judge who held that the decree could be scaled down, does not appear to have had the benefit of our decision in Subbaraya Goundan v. Nachimuthu Mudaliar (1943) 2 M.L.J. 434 = 56 L.W. 623). That was a case in which the mortgage suit was filed after Act IV of 1938 came into force, and it was contended that the mortgagors being agriculturists though they had lost their interest in the property before Act IV of 1938 came into force and were not under any personal liability by reason of the mortgage, the debt was one which could be scaled down for the benefit of others. We held that seeing that there was no debt which could be enforced against an agriculturist at the commencement of the Act, there was no question of scaling down the mortgage debt even though the mortgagors were parties to the suit and in theory entitled to redeem the mortgage. We observed,

It seems to us apparent that in laying down the procedure for the scaling down of debts, the Legislature had in mind the protection of agriculturists from the claims of creditors in respect of debts payable and recoverable by process of law and that it was not concerned with the making of mere declarations regarding the amount of debts which the creditors could not recover.

We also observed that the mere existence of a right on the part of the original mortgagor to pay the debt does not involve the consequence of deeming him to be under a liability to pay the debt and that the provisions of Act IV of 1938 are not intended to benefit agriculturists who voluntarily paid debts which could not be enforced against them.

An attempt has been made to distinguish the present case on the ground that we are here concerned with an application under S. 19 of the Act under which Section it is provided that the Court shall on the application of any judgment-debtor who is an agriculturist apply the provisions of this Act to the decree and amend the decree accordingly or enter satisfaction as the case may be. No doubt, S. 19 in terms gives to any judgment-debtor the right to apply. But when the Court comes to deal with that application, it is required to apply the provisions of the Act to the decree, and this process brings into force the provisions of Ss. 7, 8 and 9 of the Act. S. 7 which is the basic section makes it clear that only debts payable by an agriculturist at the commencement of the Act are to be scaled down. We have consistently held the view that a debt, the enforcement of which cannot be secured by a legal process, is not a debt which is payable for the purpose of Act IV of 1938. It seems to us that the rule applies equally whether the relief is sought in a pending suit or whether it is sought by means of an application under S.

1

9. In each case, before the Court reduces the debt by the application of the provisions of Ss. 7, 8 and 9, it must be satisfied that there was as on the date of the commencement of the Act a debt due from an agriculturist and that such debt was one which the agriculturist could be compelled to pay by legal process. We would also point out that S. 19 begins with the words where before the commencement of this Act, a Court has passed a decree for the repayment of a debt. Clearly the section is dealing with a debt which an agriculturist can be compelled to pay. That is to say, the section is only concerned with a debt covered by the definition in S. 3(iii), i.e., a liability due from an agriculturist.

In this view, we allow the appeal with costs here and in the lower appellate Court, and dismiss the application.