Rajagopalan, J.
1. The statement of the plaintiff's claim as embodied in the decree in O.S. No. 452 of 1933 was ' defendants have executed a security bond charging the suit properties for the suit debt and other debts. The plaintiff prays for a charge on the plaint properties.' After decreeing the claim on the promissory note executed by defendants 1 and 2, the operative portion of the decree with reference to the charge referred to above ran:
It is further ordered that the plaint properties hereunder described shall be sold for the realisation of the decree amount.
There was no specific provision in the decree calling upon the fifth defendant apart from her liability under the security bond, to pay any portion of the amount, decreed.
2. The decree-holder filed E.P. No. 448 of 1943 to realise the amount decreed by the sale of the properties on which a charge had been created. On 7th April, 1944, the decree-holder applied in E.A. No. 445 of 1944 to reduce the upset price. In opposing that application the fifth defendant, whose position was that of a usufructuary mortgagee under a deed of mortgage for Rs. 1,500 executted on 26th August, 1931, contended that that mortgage had been discharged on 15th Decemher, 1943. A receipt from the fifth defendant acknowledging payment of the mortgage, debt of Rs. 1,500 was filed into Court. It was this right of a usufructuary mortgage that had been included as one of the items charged in the security bond executed by defendants 2, 3 and 5. Quite obviously the second defendant, the original mortgagor, had notice of the security bond, which in effect constituted the plaintiff a sub-mortgagee. On 19th July, 1944, the Court held that the payment of Rs. 1,500 did not affect the right of the plaintiff who was a sub-mortgagee and that he could bring the property, i.e., the rights of the usufructuary mortgagee, to sale. The upset price was reduced.
3. On 29th May, 1944, defendants 2 and 5 filed LA. No. 597 of 1944 under Section 8 of the Madras Act IV of 1938. The second defendant's claim to scale down the decree was allowed. The fifth defendant's petition was dismissed on 3rd October, 1944; but on appeal the dismissal of fifth defendant's application was set aside, and the petition was remanded for disposal afresh. Eventually on 10th August, 1946, the fifth defendant's application, I.A. No. 597 of 1944.was dismissed on the ground that the fifth defendant was not an agriculturist on the date of the application, 29th May, 1944, as she had no further saleable interest in the usufructuary mortgage, because admittedly she had received the amount due to her under the deed of mortgage. On appeal the learned District Judge agreed with the view taken by the learned Munsif. Against the dismissal of the appeal the fifth defendant has preferred this second appeal.
4. The main question that arose for determination in the Courts below and arose again before me was whether the appellant was an agriculturist within the meaning of Section 19 of Madras Act: IV of 1938, I agree with the view taken by the Courts below that the appellant had no further saleable interest in the property on 29th May, 1944; and it was not the ease of anyone that apart from her interest as usufructuary mortgagee she had any further interest which would make her an agriculturist.
5. The learned advocate for the appellant contended that it was not necessary that the appellant should have been agriculturist on 29th May, 1944. It was quite enough if it was proved that the fifth defendant was an agriculturist on 1st October, 1937, the date referred to in Section 8(1) of the Act, and on 22nd March, 1938, when the Act came into force. It should be remembered the alleged discharge was only on 15th February, 1943. I am unable to accept this contention. In Palani Goundan v. Peria Goundan : AIR1941Mad158 , in dealing with the requirements under Section 19 of the Act, Patanjali Sastri, J., delivering the judgment of the Bench observed:
The object of the Act is clearly to provide relief for debtors who are agriculturists at the commencement of the Act (see Section 17) while Section 19 read with definition of ' agriculturist' seems to require that the debtor seeking relief should be an agriculturist at the time of the application, and the first paragraph, of Section 10 further requires, with a view to prevent abuse of the provisions of the Act, that the debtor should also have been an 'agriculturist' on the 1st October, 1937, as the proposal of affording relief to indebted agriculturists was made known that date. Thus, it is clear that the agriculturist character of the debtor is not relevant for purposes of scaling down debts under the Act except with reference to these three dates.
The same Bench had occasion to refer to that decision in Papammal v. Ramaswami Chettar : AIR1942Mad726 , where the learned Judges pointed out the difference between the requirements of Section 19 of Madras Act IV of 1938 and the requirements to be proved in a suit itself where the debt had to be scaled down in accordance with the provisions of the Act. For the second category of cases whether the debtor was an agriculturist on a date subsequent to the 22nd March, 1938, was not considered material. I am unable to accept the contention of the learned advocate for the appellant, that what was embodied in Palani Goundan v. Peria Goundan : AIR1941Mad158 , should be taken merely as obiter dicta. It is a clear pronouncement of what were the requirements of Section 19 of the Act. As I have already said, I agree with the Courts below in holding that the fifth defendant had no saleable interest on 29th May, 1944, the date of her application under Section 19 of the Act.
6. Independently of the fifth defendant's right to have the debt scaled down is the other question, put forward for the first time during arguments in second appeal, whether the position of defendants 5 and 2 with reference to the security bond was that of co-mortgagors, and whether the discharge of the mortgage debt by the second defendant would also operate as a valid discharge of that mortgage debt by the fifth defendant. This question was not raised either at the trial Court or in the lower appellate Court. In support of that contention the learned advocate for the appellant relied on Kailasa Thevar v. Ramaswami Aiyangar : (1948)2MLJ28 . Though it is a question which the appellant was allowed to raise in second appeal, it is not a question that can be answered with the data available in the record before me. The plaint itself is not before me; nor is the security bond executed by defendants 2, 4 and 5 before me. It is not possible to decide on the material available to me whether defendants 2 and 5 really occupied the position of co-mortgagors with reference to the amount for which defendants 2, 4 and 5 executed that security bond. Should their position really be that of co-mortgagors, to what extent the principles laid down in Kailasa Thevar v. Ramaswami Aiyangar : (1948)2MLJ28 , would apply would be a point for consideration. I think that these questions should be dealt with in the first instance by the trial Court. The petition is therefore remanded to the learned Munsif for disposal afresh in the light of the observations in this Judgment.
7. It, was appellant's own fault that this point was not raised till the stage of the second appeal. So I direct that the appellant do pay the plaintiff, respondent in appeal, the latter's costs in the trial Court, and in the lower appellate Court. The costs of this second appeal will be costs in the cause and will abide the result of the petition.