Hemavathi v. Padmavathi — 1953 DIGILAW 278 (MAD)

Basheer Ahmed Sayeed, J.- These three appeals arise out of the order of the learned Additional Subordinate Judge of South Kanara on three applications filed by the parties before the said Court. The first application, R.I.A. No.462 of 1948 was filed by Hemavathi, legal representative of the plaintiff in O.S. No.72 of 1944 on the file of the Subordinate Court, South Kanara, on the 27th November, 1947, under Order 34, rule 5, Civil Procedure Code, praying, for the reasons stated in the affidavit filed along with the application, that the Court should be pleased to pass a final decree for sale of the mortgaged property as per the preliminary decree, dated 22nd February, 1945, in the said suit. The learned Subordinate Judge passed a final decree in favour of Hemavathi for the sum of Rs.11,778-0-2, as the correct amount due to the decree-holder after scaling down the debt under Madras Act IV of 1938 as amended by Act XXIII of 1948. Two other applications were filed by some of the judgment-debtors-defendants. The first of these was R.I.A. No.473 of 1949 preferred by defendants 7 to 9 in O.S. No.72 of 1944 against the legal representative of the plaintiff on the 22nd March, 1949, under section 19 of Madras Act IV of 1938, in which they prayed that the Court should scale down the decree-debt as the petitioners there were entitled to the benefits of the said Act. The second of these applications, viz., R.I.A. No.546 of 1949 was preferred by defendants 1, 4 to 6 and 10 to 12 against Hemavathi and defendants 7 to 9 on the 22nd March, 1949, praying that the decree-debt might be scaled down and that the entire debt should be declared as having been wiped out as per Act XXIII of 1948. amending the original Madras Act IV of 1938. A common order, dated the 3rd September, 1949, was passed by the learned Additional Subordinate Judge of South Kanara. In this order, the learned Additional Subordinate Judge accepted most of the contentions of the petitioners in the latter two applications and scaled down the decree as stated above. The legal representative of the decree-holder being dissatisfied with this order, has preferred C.M.A. No.133 of 1950 against R.I.A. No.546 of 1949 and also C.M.A. No.501 of 1950 against R.I.A. No.473 of 1949. The legal representative of the decree-holder being dissatisfied with this order, has preferred C.M.A. No.133 of 1950 against R.I.A. No.546 of 1949 and also C.M.A. No.501 of 1950 against R.I.A. No.473 of 1949. At the same time, the petitioners in R.I.A. No.546 of 1949, being aggrieved by the refusal of the learned Additional Subordinate Judge to declare that the entire debt had been wiped out, have preferred C.M.A. No.407. of 1950. The plaintiff in O.S.No.72 of 1944, namely, one Jinnappa Chouta, filed that suit for recovery of a sum of Rs.35,415-10-0 as being the amount due to him under the suit mortgage deed which was marked as Exhibit P-1 and dated 15th May, 1929. That mortgage deed was executed in his favour by the members of the defendant’s family for a sum of Rs.15,999 due by them under two prior mortgage deeds, Exhibits P-4 and P-5, both dated the 4th April, 1913. By a prior suit, namely, O.S. No.75 of 1935 on the file of the same Court, the junior members of the defendants’ family which was governed by the customary Aliyasanthana Law, had sought to set aside the said mortgage deed, but that suit was dismissed. The defendants in the present suit, namely, O.S. No.72 of 1944, had contended that the debt originated under a transaction covered by Exhibit D-1, dated 6th February, 1892, that since then the debt was being renewed and the suit mortgage covered by Exhibit P-1 was in renewal of earlier mortgages, that as the mortgagors were agriculturists, they were entitled to the benefits of the provisions of Act IV of 1938, the debt was liable to be scaled down and that if it was so scaled down, there would be nothing due to the mortgagee, inasmuch as more than double the amount of principal had already been paid to the mortgagee. The learned Additional Subordinate Judge applied the provisions of Act IV of 1938 and holding that the mortgage debt under Exhibit P-1 was a renewal of the debt under Exhibits P-4 and P-5 declared that the principal sums due under the latter two documents should be the basis for calculating the amount payable under the suit bond. He, thereupon, passed a preliminary decree declaring that the amount due to the plaintiff was Rs.15,052-1-0 made up of Rs.9,998 due for principal and Rs.4,149-2-9 due for interest at six per cent. He, thereupon, passed a preliminary decree declaring that the amount due to the plaintiff was Rs.15,052-1-0 made up of Rs.9,998 due for principal and Rs.4,149-2-9 due for interest at six per cent. per annum from 1st October, 1937, till the date of the plaint. Since the plaintiff had also claimed a sum of Rs.639-8-0 towards the Court costs in O.S. No. 77 of 1927 which was a prior suit filed for recovery of interest on the mortgages covered by Exhibits P-4 and P-5 and Rs.265-6-3 towards interest on the Court costs at six per cent. per annum, he decreed that sum as well. In addition to these, the learned Subordinate Judge also awarded a sum of Rs.1,065-4-3 being the proportionate costs of the plaintiff with interest thereon at six per cent. per annum from the date of the decree till realisation. This preliminary decree was taken on appeal to the High Court in A.S No. 470 of 1945 by the decree-holder and this Court held that the said mortgage could not be traced back to the earlier debts due under Exhibits P-4 and P-5 in applying, the process of scaling down under Madras Act IV of 1938 and that the principal sum for which Exhibit P-1 was executed should be the correct basis for calculating the amount due to the plaintiff under the provisions of the Act. In regard to interest to which the plaintiff-mortgagee was entitled, this Court held that 6¼ per cent. per annum would be the correct rate from 1st October, 1937, up to the date of the suit. In consequence, this Court passed a modified preliminary decree for an aggregate sum of Rs.22,915-3-9 made up of the principal sum of Rs.15,999 and interest of Rs.6,916-3-9 calculated at 6¼ per cent. per annum from 1st October, 1937, till the date of plaint, and further interest at 6 per cent. per annum from 2nd September, 1944, till realisation, was also awarded. In the meanwhile, the decree-holder, Jinnappa Chouta, having died, the present appellant, Hemavathi, being the ejamanthi of the Aliyasanthana family to which the plaintiff belonged came on record as the legal representative of the decree-holder and she sought to have a final decree passed in her favour and for sale of the mortgage property, and, by way of counter, the defendants preferred the two applications referred to above. When the original decree in O.S. No.72 of 1944 was passed by the learned Additional Subordinate Judge of South Kanara on the 22nd February, 1945, the question was raised as to whether the debtors and the creditors were the same in order to entitle the debtors to the benefit of the then existing provisions of Madras Act IV of 1938. The learned Subordinate Judge finding that all the mortgages including the suit mortgage were executed by the defendants’ family, held that Exhibits P-2, P-4, P-5 and P-1 were executed by the same debtors, namely, the Aliyasanthana family of the defendants.‘On the further question as to whether the creditor was the same in respect of the mortgage debt sued upon, he held that, in so far as Exhibits P-4 and P-5 were concerned, the creditors were not the same as under Exhibit P-2 and that Exhibits P-4 and P-5 should be deemed to be in favour of two different creditors. But, when it came to a question of Exhibit P-1, the learned Subordinate Judge held that Exhibit P-1 was in renewal of Exhibits P-4 and P-5, the same having been executed in favour of the plaintiff in his individual capacity in respect of the debt under Exhibit P-4 and as ejaman of the branch family,, the heir of Ananthayya Chouta in respect of the debt due under Exhibit P-5. In those circumstances, he found that the creditor in Exhibit P-1, the suit mortgage deed, was the same as the creditor in Exhibits P-4 and P-5 and held that the Explanation to section 8 applied and the principal amount for the purpose of scaling down could not be deemed to be anything more than Rs.9,998 which was the amount covered by the original mortgages, Exhibits P-4 and P-5. The final decree was, therefore, passed after applying the process of scaling down for the principal amount of Rs.9,998 and the amount of costs with interest at six per cent. per annum from the date of the suit till realisation as set forth above. It was this decree that was modified by the High Court on the 26th November, 1946. The final decree was, therefore, passed after applying the process of scaling down for the principal amount of Rs.9,998 and the amount of costs with interest at six per cent. per annum from the date of the suit till realisation as set forth above. It was this decree that was modified by the High Court on the 26th November, 1946. For some reason or other, this modified preliminary decree did not become final and it was only on 27th November, 1947, nearly more than a year later, that the present appellant in the first two civil miscellaneous appeals, filed a petition under Order 34, rule 5 of the Civil Procedure Code, for passing a final decree for sale of the mortgaged property as per the preliminary decree. It is also not known as to why the final decree was not passed in pursuance of this application, dated 29th November, 1947, by the Sub-Court and why it was kept pending until 22nd March 1949 and ultimately until the 3rd September, 1949, when the order under appeal was passed. The fact, however, remains that, in the meanwhile, the Madras Agriculturists Relief Act was amended by Act XXIII of 1948, which came into force on 25th January, 1949. It was after this amending Act came into force that the respondents in the first two appeals and the appellants in the other appeal C.M.A. No.407 of 1950 filed the two applications on 23rd March, 1949, for a further scaling down of the decree debt in pursuance of the amending Act, taking advantage of the fact that the preliminary decree had not become final and that the decree had not also been executed or satisfied. Mr.C.S. Rama Rao Saheb, the learned counsel for the appellant in the first two appeals, namely, C.M.A. Nos.133 and 501 of 1950, has raised various contentions against the applicability of the amending Act XXIII of 1948 to the decree in question and vehemently argued that the decree is not liable to be scaled down any further for a second time. Mr.C.S. Rama Rao Saheb, the learned counsel for the appellant in the first two appeals, namely, C.M.A. Nos.133 and 501 of 1950, has raised various contentions against the applicability of the amending Act XXIII of 1948 to the decree in question and vehemently argued that the decree is not liable to be scaled down any further for a second time. The first point raised by him is that though the new Explanation III to section 8 of the original Act introduced by the amending Act XXIII of 1948, may be claimed to have set at rest the view originally taken by this Court regarding the requirements that would constitute the ‘same creditor’ and the ‘same debtor’ for purposes of scaling down, still the said amendment is not made exhaustive enough to cover all cases of debtors and creditors. The new amendment of 1948 reads as follows:- “Where a debt has been renewed or included in a fresh document executed before or after the commencement of this Act, whether by the same or a different debtor and whether in favour of the same or a different creditor, the principal originally advanced together with such sums, if any, a have been subsequently advanced as principal shall alone be treated as the principal sum repayable under this section.” It is urged by the learned counsel that the words ‘same or a different debtor’ or the ‘same or a different creditor ‘envisage only two categories and do not take in the possibility of there being other categories as ‘joint debtors or joint creditors’. The words ‘same or a different’ used in connection with both the debtor and the creditor do not lend room to the interpretation that when one debtor or creditor becomes joint with another he could still be called the ‘same debtor’ or the ‘same creditor In such a case, the identity of the creditor or debtor, as the case may be, is lost and does not remain the same. Likewise, it is argued that a person may be a creditor in one capacity and later he may become a creditor in an additional or different capacity, in which case also, the sameness is lost and he cannot be the identical creditor to be called the same creditor. Likewise, it is argued that a person may be a creditor in one capacity and later he may become a creditor in an additional or different capacity, in which case also, the sameness is lost and he cannot be the identical creditor to be called the same creditor. If creditor A remains as creditor A only, he will be the same creditor and if B becomes the creditor in place of A, then he becomes a different creditor. But if A becomes joint with C, then A and C cannot be the same creditor as A, while creditor B may still remain different from creditors A and C The point stressed by the learned counsel is that if it was the intention of the legislature that joint creditors or creditors in different but combined capacities should also be included within the purview of the terminology of same or different it should have inserted the word ‘and ‘after the word ‘or in both the places, so that the amendment should have read ‘same or and different creditor or same or and different debtor’. In so far as such a conjunction has not been used, the Explanation cannot be made applicable to cases where the creditor who was originally one individual subsequently became joint with another individual In the present case under consideration, Exhibits P-4 and P-5 were executed in favour of two different creditors. Though subsequently under Exhibit P-1 the creditor was ostensibly one, he combined in himself two different capacities The creditor is therefore not the same creditor but he is both same and different combined and the disjunctive word ‘or ‘cannot be made to serve also the purpose of the conjunctive word ‘and’ when the legislature has not taken care to insert the word and to include the same as well as different creditors functioning jointly as one category. The learned counsel also urges that the terms used by the legislature in the amending Act should be strictly construed and if that is done, the situation like the one under consideration, wherein the creditor is not merely the same but also different at the same time cannot be brought within the scope of the amending Act. There seems to be some force, prima facie, in this contention of the learned counsel for the appellant. There seems to be some force, prima facie, in this contention of the learned counsel for the appellant. In our opinion, the legislature would have done well to have included also the conjunctive word ‘and’ in addition to the disjunctive word ‘or ‘in Explanation III to section 8 inserted by the amending Act XXIII of 1948. But it does not appear to us that the intention of the legislature was that joint creditors or those creditors who combine in them more capacities than one should be outside the scope of the amending Act. The purpose of the amending Act was to provide for situations where the same creditor continues to claim the debt or a different creditor takes his place either in a single role or a combined or a joint role, so far as the claim for the debt is concerned. If creditor A becomes joint with C, he does become a different creditor from A and he will then come within the meaning of the term ‘different creditor’ interpreted in its wider sense. We find that in the later amending Act XXIV of 1950, Explanation III has been further amended to the following effect: “In Explanation III, for the words, ‘whether by the same or a different debtor and whether in favour of the same or a different creditor’, the words ‘whether by the same debtor or by his heirs, legal representatives or assigns or by any other person acting on his behalf or in his interests and whether in favour of the same creditor or of any other person acting on his behalf or in his interest’ ^hall be substituted.” Though this is a later amendment and ought not to be taken into consideration when applying the law as it stood at the time when the order of the learned Subordinate Judge was passed, still this later amendment gives a clue as to what exactly was the intention of the legislature at the time when the new Explanation III to section 8 was inserted by virtue of Act XXIII of 1948. It may therefore be assumed that by the words “same or a different creditor” the intention of the .legislature was to include all categories of creditors whether they were joint or whether they were single at the time of the scaling down of the debt, Even so, we find that the doubts expressed with regard to the splitting up of the debt by Courts of law, have also been set at rest by the addition of Explanation IV to section 8 by the amending Act XXIV of 1950, wherein it has been enacted as follows: “Where a debt has been split up, whether before or after the commencement of this Act, among the heirs, legal representatives or assigns of a debtor or of a creditor and fresh documents have been executed in respect of the different portions of such debt, the provisions of this section shall continue to apply in respect of each of the different portions.” It is beyond doubt that, in the present case, the change in the identity of the creditor came into existence only by virtue of an earlier splitting up of the original debt. It is, therefore, difficult for us to agree with the learned counsel for the appellant in his contention that Explanation III introduced by the amending Act XXIII of 1948 cannot apply to the present case under consideration. The next point urged by the learned counsel for the appellant is that the amending Act is not applicable to a debt which has already been scaled down once by the application of the Act and especially when the rights of parties have been finally adjudicated, as in this case, by virtue of the modified decree of the appellate Court, ‘which has become final as between the parties. This argument is put forth as an alternative to the earlier contention of the learned counsel for the appellant. That is to say, even if the new Explanation III to section 8 were to apply, still the retrospective scope of the Act, as indicated by section 16 of the amending Act, cannot affect the modified decree which has become final. This argument is put forth as an alternative to the earlier contention of the learned counsel for the appellant. That is to say, even if the new Explanation III to section 8 were to apply, still the retrospective scope of the Act, as indicated by section 16 of the amending Act, cannot affect the modified decree which has become final. The contention of the learned counsel is that it could not have been the intention of the legislature that decrees which have become final, particularly after they had been already scaled down by the provisions of the very Act which has been amended by section 16 of the amending Act XXIII of 1948, should be subjected to further scaling down. This would mean that there shall be no finality with regard to the process of scaling down. That is why, according to him, clause (ii) of section 16 of the amending Act has definitely provided that the amendments made by the Amending Act shall apply to 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 passed has not become final, before such commencement. In the present case, the decree now sought to be scaled down by the respondents has become final before the commencement of the Act by virtue of the modified decree and, therefore, it was outside the purview of the amending Act. Sub-clause (ii) of section 16 of the amending Act contemplates a distinct category of cases, namely, where the decrees have not become final and have not been scaled down at an earlier stage. In the absence of any words which leave the scope of the amending Act wide open without being limited to any extent, such as a phrase like ‘notwithstanding ‘not having been inserted in the section, the learned counsel for the appellant argues, it could not have been the intention of the Legislature to allow a ripping open of the decree which has already been once scaled down under the provisions of the main Act. If that were the intention, certainly, nothing could have prevented the Legislature to insert the word ‘notwithstanding ‘in the commencement of section 16 of the amending Act. If that were the intention, certainly, nothing could have prevented the Legislature to insert the word ‘notwithstanding ‘in the commencement of section 16 of the amending Act. This not having been done, it must be presumed that the Legislature did not intend that decrees which have become final should still be capable of being re-opened though they had been once before scaled down by applying the provisions of the main Act. According to the learned counsel for the appellant, subclause (iii) of section 16 of the amending Act cannot be of any avail to the respondents. That sub-clause is to the effect that the Act shall apply to 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. If it is contended that, for the simple reason that the decree or order passed has not been executed or satisfied in full before the commencement of this Act, as is the position in the present case, the decree should be liable to further scaling down, then clause (ii) would become unnecessary and redundant. Sub-clause (iii) of section 16 would be all comprehensive and the Legislature need not have inserted clause (ii) of section 16, if it had not thought of providing for a distinct class of cases, namely, cases where the decree had been passed but had not become final. The first sub-clause of section 16 is of general import, namely, that the Act shall apply to all suits and proceedings instituted after the commencement of this Act. The emphasis seems to be on the words “after the commencement of this Act” in this sub-clause. In the second clause of section 16, the emphasis seems to be that the amending Act shall be applicable to all suits and proceedings in which the decree or order has not become final before the commencement of this Act, and the third clause seems to contemplate suits and proceedings in which the decree or order passed has not been executed or satisfied in full before the commencement of this Act. The emphasis in this case is upon execution or satisfaction, before the commencement of the Act. The emphasis in this case is upon execution or satisfaction, before the commencement of the Act. Therefore, fresh suits and proceedings, after the commencement of the amending Act, and also pending proceedings where the decree has not become final or where it has not been executed or satisfied, have been provided for by the Legislature for being brought within the scope of the provisions for scaling down the debt. The learned counsel also urges that in providing for suits and proceedings instituted after the amending Act and also for those pending before the commencement of the Act not having become final or not having been executed or satisfied in full being brought within the scope of the provisions for scaling down, the Legislature cannot be presumed to have created any new right in favour of the debtors for a repeated process of scaling down. If any such new right has been intended by the Legislature, the appropriate terminology would have been employed by the Legislature. What appears to have been done by the Legislature is, according to the learned counsel, the effective securing of the right that has already been assured to the debtor by the provisions of the main Act. In the absence of any appropriate terminology from which it can be reasonably inferred that a new right has been created by the amending Act over and above what has been bestowed upon the debtor by the existing provisions of the main Act, it would be far-fetched to import into the language of section 16 of the amending Act that a further right is given to the debtor to have the decree scaled down even after it had become final. It is argued that the import of clause (ii) to section 16 cannot be assumed to be that even decrees which have already been scaled down and which have become final could still be available for being re-opened for the mere reason that they have not been still executed or satisfied. The situations contemplated by the two sub-sections are distinct and different and they are not overlapping. If they are made to overlap in their application by any interpretation of the kind that has been resorted to by the respondents in this case, it would be doing violence to the express terms of the said two sub-sections of section 16 of the amending Act (Act XXIII of 1948). If they are made to overlap in their application by any interpretation of the kind that has been resorted to by the respondents in this case, it would be doing violence to the express terms of the said two sub-sections of section 16 of the amending Act (Act XXIII of 1948). In so far as the present case is covered by sub-section (ii) the mere fact that the decree remains unexecuted or not satisfied in full will not entitle the debtors to file a fresh application as otherwise the finality of decree that is contemplated under sub-section (ii) would have been defeated. Sub-section (iii), therefore, must be deemed to apply to cases where there has been no previous application for scaling down and as long as such a decree remains unexecuted or not satisfied in full, there will be ample scope for an application for scaling down. If it were the case that a new relief or a new right has been created by virtue of these sections, successive applications for the same relief cannot be warranted. The Legislature has simply introduced a new provision without creating a new right but only seeking to make the relief already provided in the main section, effective and still available, provided the conditions laid down in the two sub-sections of section 16 are satisfied. There appears to be some force in all these contentions raised by the learned counsel for the appellant. But we have to point out these very contentions or most of them at any rate, had been raised before a Division Bench of this Court consisting of Subba Rao and Somasundaram, JJ. They accepted these contentions in their judgment in C.M.A. Nos.316 and 391 of 1947. But, a Full Bench of this Court, to which the point was referred for decision on a conflict of views between this Bench and another has overruled the view taken by Subba Rao and Somasundaram, JJ., in C.M.A. Nos.316 and 391 of 1947 as erroneous. They accepted these contentions in their judgment in C.M.A. Nos.316 and 391 of 1947. But, a Full Bench of this Court, to which the point was referred for decision on a conflict of views between this Bench and another has overruled the view taken by Subba Rao and Somasundaram, JJ., in C.M.A. Nos.316 and 391 of 1947 as erroneous. In their judgment in Venkataratnam v. Seshamma1, the learned Judges have held that sub-section (iii) of section 16 of the amending Act does not contain the words “in which the decree or order passed has not become final” and that therefore sub-clause (iii) being quite general, it applied to all suits and proceedings in which the decree or order passed has not been executed or satisfied in full before the commencement of the amending Act and so it is intended to apply also to decrees or orders even if they had become final before the commencement of the Act, provided the decree or order has not been executed or fully satisfied. Satyanarayana Rao, J., delivering the judgment of the Full Bench observes as follows: “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.” To the question as to which are the kinds of decrees or orders which have become final and which are sought to excluded by implication in clause (ii) of section 16, the learned Judge observes as follows: “It is of course not easy to give an exhaustive list of such decrees or 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 opened. A reading of the two clauses together would suggest that clause (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 are bound by this decision of the Full Bench of our Court in the interpretation given to clauses (ii) and (iii) of section 16 of the amending Act XXIII of 1948, and whatever might be the force we find in the arguments advanced on behalf of the appellant by her learned counsel, we are, in the circumstances, bound to follow the decision of the Full Bench. This decision has also been followed subsequently in Narayana Chettiar v. Annamalai Chettiar1 by the very Bench which held a contrary view before the decision of the Full Bench. In Narayana Chettiar v. Rathinaswami Padayachi2, the learned Chief Justice has held that if a subsequent application is based upon a provision of law not in existence at the time of a prior application of his, the judgment-debtor will not be debarred from filing the later application simply because he had filed a prior application when the state of law did not entitle him to the relief to which he became entitled by a subsequent change in the law. He has also held: “Where the judgment-debtor alleges that he has become entitled to relief under the provisions of the amending Act XXIII of 1948-relief which was not available to him before the amendment, a prior application under section 20 filed in 1946 will not be a bar to a fresh application under that section after the amending Act came into force.” On a consideration of the entire facts of this case, we do not think that we can agree with the various contentions of the learned counsel for the appellant and we think that, in the circumstances, the order of the learned Subordinate Judge has to be confirmed and the appeals C.M.A. Nos.133 of 1950 and 501 of 1950 have to be dismissed. In regard to C.M.A. No.407 of 1950, Mr. Adiga urged the very same contentions which were gone into thoroughly by the learned Subordinate Judge and which have been rejected. We do not think that any fresh materials have been placed before us in order to come to a conclusion different from the one which the learned Subordinate Judge has arrived at. We, therefore, think that, in the circumstances, there are no merits in this appeal and this appeal will have to be dismissed and is accordingly dismissed. As regards costs, we think, justice of the case requires that each party should be directed to bear his or her costs in this Court. K.S. ----- Appeals dismissed.