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Judgment
Subba Rao, J.—This second appeal arises out of O. S. Wo. 68 of 1947 on the file of the District Munsif''s Court, Vizagapatam, a suit filed
by the appellant to direct the defendants to put him in possession of the plaint schedule property and for a declaration that the entire amount due
under the usufructuary mortgage dated 22nd July 1873 was completely discharged.
To appreciate the contentions of the parties, it is enough to state the relevant facts. The plaintiff, alleging to be the owner of the equity of
redemption and also the purchaser of two-thirds of the mortgage interest in the aforesaid mortgage, filed the said suit for redemption and for
possession of the plaint schedule properties. The plaintiff''s case is that he is an agriculturist and that, if the provisions of the Madras Agriculturists''-
Relief Act are applied to the debt, the debt would be discharged. The defendants contended, inter alia, that the plaintiff is not an agriculturist and
that the suit is premature. They also pleaded that the plaintiff is precluded from raising the plea that he is an agriculturist by reason of the order in
the application taken by him under the provisions of the Madras Agriculturists'' Belief Act.
The learned District Munsif held that the decision in the earlier proceedings would not be a bar for the maintainability of the suit as, according to
him, the plaintiff''s right to file a suit was expressly reserved. The learned District Munsif and the learned District Judge in appeal held that the order
in the earlier proceedings would operate as res judicata. They also held that the suit would be premature as, if the debt was not scaled down the
mortgage debt would not foe discharged. The plaintiff preferred the above second appeal.
Mr. Ramamurthi, learned counsel for the appellant, contended before me that the view of the courts below on the question of res judicata is
unsound. To appreciate his contention, it is necessary to notice the scope of the previous proceedings and the order made therein. As aforesaid,
the plaintiff filed O. P. No. 43 of 1941 on the file of the Court of the District Munsif, Vizagapatam, for a declaration of the debt due by him. The
said application was filed under Rule 2 of the rules relating to applications to civil courts for scaling down of non-decreed debt. The District Munsif
raised the following issues :
Whether the petitioner and his vendor are agriculturists?
Whether the properties mortgaged in 1873 and those purchased by the petitioner are the same?
Whether this petition is in time?
Whether the debt is not liable to be scaled down? And
If the debt is liable to be scaled down, what amount, if any, is due thereon?
The learned District Munsif held on issue 1 that the petitioner and his vendor were agriculturists, on issue 2 that the properties mortgaged in 1873
and those purchased by the petitioner are the same, on issue 3 that the petition was in time, on issue 4 that the debt was liable to be scaled down
and on issue 5 that the amount due to the respondent was only a sum of Rs. 112-4-0 with interest at 6 1/4 per cent per annum from 1st October
1937 till payment. The respondent preferred an appeal to the District Court, Vizagapatam. The learned District Judge definitely held that he was
not prepared to hold on the evidence that the petitioner was an agriculturist entitled to present the petition and expressed the view that on that short
ground the petition should have been dismissed. In regard to the other question raised in that petition he also expressed the view that that matter
could only be decided in a regular suit. The appellant preferred an appeal against the order of the District judge to the High Court in A. A. A. O.
No. 361 of 1943. Wads-worth J. dismissed the appeal. But in dismissing the appeal he observed as follows :
The appellant has not satisfied the lower appellate court either that he is an agriculturist or that he is the owner of the whole of the mortgagor''s
interest. It does not appear to have been either averred or proved that the persons, who were the titular mortgagors when Madras Act IV of 1938
came into force were agriculturists ..... In such a case, the claimant should be required to prove strictly his right to the relief which he seeks. The
appeal is dismissed with costs.
On a perusal of the judgments of the District Judge and of Wadsworth J., I find it very difficult to accept the contention of the learned counsel for
the appellant that the District Judge as well as Wadsworth J. left open the question whether the plaintiff is an agriculturist or not to be decided in a
regular suit. The District Judge specifically held that the plaintiff was not an agriculturist. Wadsworth J. agreed with him and pointed out that it was
not averred or proved that the persons who were the titular mortgagors when Madras Act IV of 1938 came into force were agriculturists. In
dismissing the appeal, the learned Judge did not expressly reserve the other questions to be decided in a suit. But it is not necessary to decide
whether the courts on the previous occasion reserved questions other than the question whether the plaintiff is an agriculturist or not to be decided
in a regular suit. It is manifest that the question whether the plaintiff is an agriculturist has been finally deckled against the plaintiff.
In those circumstances, the next question that arises is whether the said finding would operate as res judicata_ in the present proceedings. The
question viz., under what circumstances the decision in a petition would operate as res judicata in a regular suit has been decided by Somayya and
Yahya All JJ. in --''Arikapudi Balakotayya v. Yadlapalli Nagayya'', ILR 1946 Mad 566. There, the question was whether a decision of a District
Court u/s 84(1) of the Madras Hindu Religious Endowments Act negativing the contentions of the applicants that they and their forefathers were
hereditary trustees of the temple, would be res judicata in a suit filed by them for a declaration that the office of trusteeship was hereditary in their
family.
The learned Judges held that the doctrine of res judicata is not confined to decisions in suits but applies even to decisions rendered in proceedings)
which are not suits. To ascertain whether a proceeding is summary or not, they have laid down various tests and held that if the proceeding is not a
summary one, a decision therein would be res judicata if the conditions laid down in Section 11 C. P. C. are complied with. They"" negatived the
contention that a proceeding u/s 84(1) of the Madras Hindu Religious Endowments Act is summary in nature. The fact that the District Court is
bound to take evidence, should act on the materials placed before it by parties, should decide substantial questions affecting rights of parties and
similar characteristics were considered as indicating that the proceedings were not summary in their nature.
In the present case, the object of the rules relating to applications to civil courts for scaling down of non-decreed debts is apparent. They were
intended to provide for an expeditious cheaper remedy for ascertaining the debt due to the creditor. The rules would enable the creditor to institute
a suit for recovery of the amount declared due to him and thereby to avoid excessive court fees and invite objections from the debtors. The rules
also would enable a debtor to pay off the debt scaled down instead of involving himself in unnecessary and costly litigation. To effectuate this
purpose, the rules provide for an enquiry wherein the parties are enabled to adduce the entire evidence available to them, The particulars that are
to be given under Rule 4 of the rules are those that are found in a plaint.
Under Rule 7, on the date originally fixed under Rule 6, or on any subsequent date to which the application may be adjourned by the court, the
court shall after taking such evidence or making such enquiry as it may consider necessary, pass such order on the application as it thinks fit. This
rule, therefore, enables parties to adduce necessary evidence. Rule 9 says that the order of the court declaring the amount of the debt under Rule 7
shall be subject to appeal and second appeal as if it were a decree in an original suit. Under Rule 10, the courts having jurisdiction under these
rules shall be the courts which would have jurisdiction to entertain suits for the recovery of the debts as unsealed.
It is therefore clear from the aforesaid rules that they provide for pleadings, prescribe the same form in which a suit would have to be filed, enable
the parties to adduce evidence and provide for an appeal, and second appeal as if the order made was a decree. I cannot hold that the
proceedings are of a summary nature. I therefore hold following the decision in -- ''Arikadpudi Balakotayya v. Yedlapalli Nagayya'', ILR 1946
Mad 566 that the order made in A. A. A. O. No. 361 of 1943 would operate as res judicata and preclude the plaintiff from raising the plea that he
is not an agriculturist over again. No other point was argued.
In the result the appeal fails and it is dismissed with costs. No leave.