(Delivered by Venkataramana Rao, J.)

This civil miscellaneous appeal, which was later converted into a civil revision petition, arises out of an application filed under S. 19 of the Madras Agriculturists Relief Act for scaling down a debt due by the petitioner in respect whereof a decree was passed on 18th September 1935 by the Sub-Court of Devakottah and confirmed by the High Court on 28-2-1939. The learned Subordinate Judge dismissed the application on the ground that though the petitioners are agriculturists within the meaning of the Act, they are not entitled to the benefits thereunder because they have been assessed to property or house tax within two years immediately preceding 1-10-1937 within the meaning of S. 3, Cl. (C) of the Act. This view is challenged by the petitioners as unsound. But the learned Counsel for the respondent-decree-holder submits that the dismissal of the application could be sustained on the ground that the application under S. 19 was incompetent and the Subordinate Judge of Devakottah had no jurisdiction to grant any relief thereon. His contention is that S. 19 of the Act does not apply to decrees passed after the commencement of Madras Act IV of 1938, namely, 22-3-1938, and the appellate decree in this case was passed after the said date, that is, on 28-2-1939, that the said decree has become final and that if the petitioners wanted any relief under the Act, they should have made the application to the appellate Court before the decree was passed by that Court. In support of this contention he relied on the recent decisions of this Court reported in Motam Kotayya v. Singampalli Venkata Punnayya(1), Kannabhiran Pillai v. Govindasami Pillai(2) and Ramaswami Udaiyar v. Ramanathan Chettiar(3). Apart from authority, according to the plain language of S. 19, it would not apply to a decree passed after the commencement of the Act. In Motam Kotayya v. Singampalli Venkata Punnayya our learned brothers Wadsworth and Patanjali Sastri, JJ. took this view with reference to a decree passed by a trial Court after the commencement of the Act. In that case the suit was brought on 3-1-1938 and a decree was passed on 18-4-38. Between these dates the Act came into force, that is, on 22-3-1938. Though the written statement in that case was filed on 30-1-1938, the learned Judges held that it was the obvious duty of the petitioner to make an application to the Court before the passing of the decree claiming relief under the Act and as he had omitted to do so, the decree must be deemed to have become final. The reason is thus stated by Patanjali Sastri J. at page 204:

“All available pleas in answer to a claim should be made the subject of enquiry before the Court passes the decree………It may be laudable to rehabilitate agriculturists by a compulsory scaling down of their debts but it could be no part of this object to condone, and thereby encourage, their laches in the conduct of legal proceedings. On the other hand, having regard to the expropriatory nature of the provisions, Courts should watch with a jealous eye attempts to have the scope of the Act extended, under colour of interpretation, beyond what its terms expressly warrant. I am therefore of opinion, reading the Act as a whole, that the word ‘decree’ in Ss. 7, 8 and 9 must be taken to refer to decrees passed before the commencement of the Act.”

This principle was extended by our learned brother Wadsworth, J. to a case where a trial Court dismissed the suit but on appeal that decision was reversed by the appellate Court after the Act came into force [vide Kannabhiran Pillai v. Govindasami Pillai]. He observed thus:

“At the time when this application was made, there was a good deal of difference of opinion on the question whether a decree passed after the Act came into force could be scaled down. That doubt has, I hope, been finally set at rest by our decision reported in Motam Kotayya v. Singampalli Venkata Punnayya. In the light of that decision, it must be held that the application to the lower Court to scale down the appellate Court's decree under S. 19 was not the proper procedure.”

In Ramaswami Udaiyar v. Ramanathan Chettiar the above principle was extended also to a case where a decree of the trial Court was modified in appeal after the passing of the Act. That was a decision of a Bench and the learned Judges Wadsworth and Patanjali Sastri, JJ. remarked thus:

“We have held that S. 19 of the Madras Act IV of 1938 has no application to decrees passed after the Act came into force, one reason being that any person who has a contention to urge which will affect such a decree must urge it in the pending proceedings and if he does not urge it he must be taken to have waived it. We see no reason to apply a different principle to proceedings in appeal of which the affected party has had notice.”

In C.R.P No. 1667 of 1939 the question again came up with reference to a decree passed by the District Munsif before the commencement of the Act which was confirmed by the Subordinate Judge before the commencement of the Act and which decree was again confirmed by the High Court in second appeal after the commencement of the Act. The appellate decree was passed by our learned brothers Burn and Lakshmana Rao, JJ. When the civil revision petition came up for hearing in the first instance before Wadsworth, J., he referred it to a Bench on the ground that there was a reservation in the judgment of the appellate Court that the judgment-debtor might avail himself of the provisions of the Agriculturists Relief Act, though the decree did not contain any reservation in that behalf. In the course of the reference Wadsworth, J. expressed the view that the principle laid down in the above cases should be applied even to a case where a decree has been confirmed by the appellate Court. He observed thus: “I do not think that it makes any difference, whether the decree is a reversing one or an affirming one.” When the matter came up before the Bench, Burn and Lakshmana Rao, JJ., they allowed the civil revision petition observing thus:

“Decrees passed after the commencement of Madras Act IV of 1938 cannot be amended under S. 19 of that Act. [Vide Motam Kotayya v. Singampalli Venkata Punnayya]. The order of the learned District Munsif is therefore wholly without jurisdiction.”

It is thus clear that whether the decree of the appellate Court was passed in the first instance or in modification or reversal or confirmation of the decree of the original Court, nevertheless it would be a decree passed after the commencement of the Act and cannot be amended under S. 19 of the Act. If we may say so with respect, we entirely agree with this view as it follows from the plain language of the section. But Mr. Ramaswami Ayyar would contend that though this view may be correct in so far as a decree was passed in the first instance by the appellate Court or the original Court's decree was modified or reversed by it, it would not apply to a case where the appellate Court merely confirms the original Court's decree; in the latter case according to him it would only leave the decree of the original Court standing and the only decree to be executed. He further contends that in view of the interpretation placed by Madhavan Nair, J. in Ganga Raju v. Ramayya(4) on the language “a Court which passed a decree” in S. 19 as meaning even in the case of a decree of the appellate Court the Court of first instance, the application to the Sub-Court in this case was competent. He also contends that when the Act came into force, his client had a right to apply to the Sub-Court under S. 19 of the Act, that he was not obliged to make an application to the appellate Court, that the debt could have been scaled down by the original Court before the appeal was decided and therefore the said right could not be lost by reason of the confirmation of the decree in appeal. The question is whether these contentions are tenable. Our Court has throughout followed the view taken by Sir John Edge in Muhammad Sulaiman Khan v. Muhammad Yarkhan:

“In my opinion the effect of S. 579 of the Code (1882) (corresponding to O. 41, R. 35, C.P.C 1908) is to cause the decree of the appellate Court to supersede the decree of the Court below even when the decree of the appellate Court is one which merely affirms that decree below and does not reverse it or modify it. In my opinion the only decree that can be amended is the decree to be executed, and the decree to be executed is the decree of the appellate Court and not the decree of the Court below.”

It is this view that was followed in Manavikrama v. Unniappan and later affirmed by the Full Bench in Pichuvayyangar v. Seshayyangar which has since been followed. I may point out that this view was later approved by the Privy Council [Vide Brij Narain v. Tejlal Bikram Bahadur]. As Bhashyam Ayyangar J. explained in Kristnamachariar v. Mangammal(5),

“when an appeal is preferred from a decree of a Court of first instance, the suit is continued in the Court of appeal and re-heard either in whole or in part, according as the whole suit is litigated again in the Court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of first instance.”

The contention that the decree of the original Court when it is confirmed in appeal is still the decree to be executed is thus opposed to principle. In regard to the argument based on the decisions in Ganga Raju v. Ramayya(6) and the decisions which followed it, they are distinguishable because the decrees passed by the appellate Court in those cases were before the passing of the Act. We therefore think it unnecessary to go into the correctness of the said decisions which was canvassed during the course of the argument.

We shall now deal with the contention raised by Mr. Ramaswami Ayyar that his client is not obliged to make an application to the appellate Court. It is no doubt true that before the appeal is decided an application to the trial Court under S. 19 is competent, but if before the application is disposed of, the decree is passed by the appellate Court, the latter decree becomes final and the application to the lower Court becomes infructuous. Even if the debt has been scaled down before the appeal is decided, it is the duty of either party to bring that fact before or at the hearing of the appellate Court either by way of appeal or otherwise so that the appellate Court might pass the appropriate decree. As pointed out in Muthuswami Ayyar v. Kalyani Ammal(7) the authority of an appellate Court is not limited to determining the question whether the original Court was right according to the law in force at the time of its judgment. It is entitled to pass such a decree as would be in accordance with any later enactment which came into operation subsequent to such date. To avoid anomalies and multiplicity of proceedings a party ought to make the application to the appellate Court for the relief he is entitled to under an enactment which came subsequent to the passing of the decree of the original Court and get the necessary relief in accordance with that enactment. The pendency of the appeal suspends the finality of the decree of the original Court and before a final decree is passed by it, all the relief which a party is entitled to and which would have been given by the original Court had the later enactment been in existence on the date on which it passed the decree should be urged before the appellate decree is passed, because once a decree is passed, as pointed out by the Privy Council in Kotaghiri Venkatasubbamma Rao v. Vellanki Venkatarama Rao(8), it is not open to a Court to amend or review a decree except under S. 152 or O. 47, R. 1, C.P.C And the relief under the Act cannot be brought under any of those sections. Therefore the party runs the risk of losing the benefit under the Act if he does not urge before the appellate Court the plea which the new enactment gives him or, if he has already obtained a decree in the first Court, he fails to bring it to its notice.

We are of opinion that the application to the lower Court was incompetent and on this ground the dismissal of the application was proper. In this view we think it unnecessary to go into the correctness of the other questions raised and considered by the learned Subordinate Judge.

In the result the civil revision petition fails and is dismissed, but as the respondent did not raise any objection to the maintainability of the application in the lower Court, we direct each party to bear his own costs both here and in the Court below.

Petition dismissed.

N.R.R