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Raghubir Gir Vs. Badam Gir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberEx. Second Appeal No. 2075 of 1945 and F.A.F.O. No. 191 of 1946
Judge
Reported inAIR1951All250
ActsDebt Law; Uttar Pradesh Debt Redemption Act, 1940 - Sections 2(9) and 17; Code of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantRaghubir Gir
RespondentBadam Gir
Appellant AdvocateB. Mukerji, Adv.
Respondent AdvocateSatish Chandra, ;B. Dayal, ;R.B. Jain, ;G.N. Kunzru, ;Krishna Shanker and ;A.P. Gupta, Advs.
Excerpt:
.....to 'another person'.the use of the words 'another person',in conjunction with the words 'the borrower' in the definition of the word 'loan',clearly indicates that the contract transferring the liability for the repayment of the loan should be between the borrower & a third person......before the sale to him by the heirs of chunni gir. the j.d., raghubir gir claimed protection from sale with respect to the property he had purchased from the heirs of chunni gir & also with respect to the houses. the trial ct. rejected his objection & allowed the execution to proceed in the manner sought by the d.h. raghubir gir appealed & the learned. addl. civil judge dismissed the appeal with respect to the property he had purchased & allowed it with respect to the abadi by his order, dated 1-6-1945. it is against this order that raghubir gir filed this second appeal.3. the d.hs. filed a review appln. before the, learned addl. civil judge with respect to the dispute about the abadi. the learned addl. civil judge reviewed his order & ordered the sale of he site of the abadi. against.....
Judgment:

Raghubar Dayal, J.

1. This is a J.D.'s appeal against the order of the Ct. below disallowing his claim about the non-saleability of certain land in, view of Section 17, U. P, Debt redemption Act.

2. The facts leading to this appeal briefly are? that Baghubir Gir & Chunni Gir brothers executed a simple mtge. bond for Rs. 2,100 in favour of Badam Gir and ors. In 1938 the heirs of Ghunni Gir transferred their share of the equity of redemption in the mortgaged property to Baghubir Gir & left Rs. 1,300 out of the sale considerations with the vendee for paying off the vendor's share of the mtge. debt. The mtgee. got the decree for sale against Eaghubir Gir only. In execution of this decree Badam Gir and ors. D.Hs. sought the sale of half the mortgaged property which Eaghubir Gir had purchased from the heirs of Chunni Gir & of the houses of Eaghubir Gir in the Abadi. They also sought the execution of a usufructuary mtge. for 20 years, in accordance with the term of the U. P. Debt Redemption Act, with respect, to half the mortgaged property which was owned by Raghubir Gir from before the sale to him by the heirs of Chunni Gir. The J.D., Raghubir Gir claimed protection from sale with respect to the property he had purchased from the heirs of Chunni Gir & also with respect to the houses. The trial Ct. rejected his objection & allowed the execution to proceed in the manner sought by the D.H. Raghubir Gir appealed & the learned. Addl. Civil Judge dismissed the appeal with respect to the property he had purchased & allowed it with respect to the abadi by his order, dated 1-6-1945. It is against this order that Raghubir Gir filed this second appeal.

3. The D.Hs. filed a review appln. before the, learned Addl. Civil Judge with respect to the dispute about the abadi. The learned Addl. Civil Judge reviewed his order & ordered the sale of he site of the abadi. Against this order Raghubir Gir has filed first appeal from order. No. 191 of 1946.

4. The first appeal has no force on merits. The abadi land does not come within the definition of the word, 'land,' in Section 2, Sub-section (8), U. P. Debt Redemption Act which is :

' 'Land' means land in a mahal in the U. P. but does met include land occupied by buildings or appurtenant thereto. . . ..'

It is, however, contended that no ground for review, as contemplated by Order 47, Rule 1, C. P. C., existed & that, therefore, the Ct. below could not have reviewed its previous order. We are of opinion that the ground for review can be refd. to that part of Order 47, Rule. 1, .... C. P. C , which allows a review for any other suffieient reason. It is obvious that there was an error in the original order of the learned Addl. Civil Judge which appears to have been passed with pointed attention towards the question of saleability of the houses as such without any particular attention to the question of the saleability of the site. The error can be said to be analogous to the error apparent on the face of the record. It was held in Narain Das v. Chiranji Lal, 23 A. L. J. 56 at p. 58:

'In our opinion, the words 'for any other sufficient reason' in Order 47, Rule 1, are not only very wide in themselves, but were intentionally so made by the Legislature, tiacauae of the possibility of exceptional oases arising in which obvious injustice would be worked by strict adherence to the terms of the decree as originally passed. We are not prepared to hold that the Ct. below was outside its jurisdiction in passing the order now under appeal.'

We, therefore, consider that the Ct. below rightly viewed its previous order & ordered that the site of the abadi was saleable.

5. The main point for determination in the second appeal centres round the interpretation of the definition of the word, loan', in Section 2, Sub-section (9), U. P. Debt Redemption Act which is :

' 'Loan' means an advance in cash or kind made before 1-6-1940, recoverable from an agriculturist or a workman or from any such person and ors persons jointly or from the property of an agriculturist or workman & includes any transaction which in substance amounts to such advance, but does not include an advance the liability for the repayment of which has, by a contract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Govt. or by a local authority authorized by the Provincial Govt. to make advances or by a co-operative society or by a scheduled bank.'

The question really is whether this contract between the heirs of Chunni Gir & Raghubir Gir in the sale transaction with respect to Raghubir Gir's retaining Rs. 1,300 to pay off the vendor's share of the mtge. debt can be said to be a contract with the borrower as contemplated in the definition of the word, 'loan'. There is no dispute that the transfer of liability for the repayment of the loan means a transfer of the entire liability with respect to the loan. What is contended for the resps is that in case of there being more borrowers than one, the transfer of liability with respect to the entire share of one or more of such borrowers, who made the transfer, would be sufficent to make the portion of the advance corresponding to the share of such transferors not a loan. We do not consider such an interpretation to be justified & are of opinion that the contract contemplated in the definition of the word, 'loan', means a contract with the entire body of borrowers. There is nothing in the definition of the word, 'loan' or in any other provision of the U. P. Debt Redemption Act which can justify the Ct. to split up the transaction of loan into separate transactions. If the contract between one of the several borrowers with a third person was contemplated in the definition of the word, 'loan', the expressions used could have been different. It is the advance which is to be considered as a 'loan' & ordinarily, it should not be that an advance with respect to certain person should be a loan & with respect to another should lose its character of a loan. That an advance should be treated as a whole in considering the definition of the word, 'loan', in proceedings under the U.P. Debt Redemption Act can be inferred from the provisions of Section 11 of the Act which has provided for the apportionment of a loan when it is a joint loan due from several persons any of whom is an agriculturist or a workman. If the Act had contemplated the apportionment of a loan between such borrowers who had transferred their liability & the non-transferors, it could have provided similarly for such an apportionment.

6. A further point that arises is, whether the transfer of a liability by 'one borrower' to a 'co-borrower' can be held to be a transfer by 'the borrower' to 'another person'. The use of the words 'another person', in conjunction with the words 'the borrower' in the definition of the word 'loan', clearly indicates that the contract transferring the liability for the repayment of the loan should be between the borrower & a third person. A transfer inter se between co-borrowers is not contemplated. Though the question was not directly in issue in the case reported in Ram Pd. Singh v. Bachcha Singh, A. I. R. (32) 1945 Oudh 305, the words, 'another person' were interpreted in that case & it was observed at p. 307, Col. 2 :

'The fact that the transferee of the liability is designated by the words 'another person' does not indicate, to my mind, that the 'Legislature intended to confine the expression to a non-agriculturist or a non-workman, for if such was the intention, one would expect a somewhat different language. The object in making the exclusion was to debar all persons who were not originally the debtors but who have, as a matter of business transaction, acquired the property & thereby taken upon themselves the liability to discharge the debt. The words 'another person' therefore, I believe, art used in a comprehensive sense comprising all transferees of liabilities regardless of the consideration whether they are agriculturists, non-agriculturists, workmen or persons of any other description or denomination . .. .'

In this view of the matter too, the retention of, Rs. 1300 by Raghubir Gir to pay off the vendor's share of the mtge. debt would not amount to another person's undertaking the liability for the repayment of the loan under a contract with the 'borrower'.

7. We are, therefore, of opinion that the loan tender the mtge. deed continues to be a loan for the entire amount &, therefore, the land purchased by Eaghubir Gir from the heirs of Chunni Gir is protected from sale. In view of the above, we allow the second appeal with costs, set aside the order of the Ct. below & order that half of the mortgaged property, excluding the site of the abadi, purchased by Raghubir Gir is also not saleable in execution of this decree. We dismiss the first appeal from order with costs.


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