1. This is an appeal by Sayid Mohammad Mohtashim and Sayid Mohammad Mohtarim who were defendants in suit No. 48 of 1936. The suit was brought by Lala Joti Prasad for the recovery of a certain sum of money on the basis of a promissory note executed by the two defendants on 1st December 933. There was another suit No. 488 of 1934 filed by Sayid Mohammad Mohtashim and Sayid Mohammad Mohtarim against Lala Joti Prasad under Section 33, Agriculturists' Relief Act. The Court below disposed of the two suits by a single judgment. In the suit brought by the debtors under Section 33, the Court below came to the conclusion that a certain sum of money was due by the debtors to the creditor and a declaratory decree under the provisions of Section 33(2) was given to the debtors. In the suit filed by Lala Joti Prasad the Court below came to the conclusion that the identical sum of money found due in the other case was payable to Lala Joti Prasad from the debtors. In the suit of the creditor the Court below passed a decree for the recovery of a certain sum of money. We might repeat that the same sum of money was found due from the debtors in the connected suit. The defendants have filed the present first appeal in the suit by the creditor against them. They have not filed any appeal in the suit which they themselves filed under Section 33 and in which it was declared that the same sum of money, as found due in the present case, was payable by them to Lala Joti Prasad, the creditor.
2. A preliminary objection has been taken that by reason of the failure of the present appellants to file an appeal in the suit for accounts filed by them, the present appeal is incompetent, and reliance is placed on the Full Bench decision of this Court in Zaharai v. Debia ('11) 33 All 51. In reply to the preliminary objection our attention is drawn to another Full Bench decision of this Court in 45 ALL 506.2 We may mention at once that 33 ALL 511 was not overruled by the subsequent Full Bench decision; on the contrary there are observations in the judgments of all the learned Judges that 33 ALL 511 was correctly decided and was applicable to cases where the facts were similar. All that was held in the subsequent Full Bench was that under certain circumstances it might not be necessary for an aggrieved party to file two appeals, more particularly when one of the appeals in the lower Court was decided in favour of that particular party and when the points in dispute in the two appeals were clearly distinguishable. The mere fact that an identical paper decree was passed in two cases was not enough. From what we have said above it is clear that the facts in this case are very similar to the facts in 33 ALL 511 and the authority of that case is binding on this Bench. The position, therefore, is that the defendants-appellants cannot be permitted to agitate before us that the sum which has been decreed to the plaintiff is liable to reduction. There is, however, one other point in the present appeal, and it is that the Court below while passing a decree in favour of the plaintiff and granting instalments to the defendants fell into a slight error. The operative portion of the order about which-grievance is made is to the following effect:
3. In case of default being made in payment of any three instalments the entire decretal amount, minus the amount paid, shall fall due at once.
4. This was in view of Section 3, Sub-clause (i), Agriculturists' Relief Act. But the words used there are:.where the number of instalments allowed is six or more and any three instalments are in arrears the decree-holder may, notwithstanding the provisions of any law for the time being in force, immediately enforce payment of the whole amount then remaining due under the decree....
5. The contention is that the words mentioned by us as occurring in the operative portion of the order of the Court below should be changed and brought in conformity with the phraseology used in Section 3, Sub-clause (4). This point is not in conflict in any manner with the preliminary objection, and we have the power to make the necessary alteration if the submission advanced on behalf of the appellants is sound. We think there is considerable force in the contention of the appellants, and we, therefore, allow this appeal to this extent that we modify the decree of the Court below by deleting the words, 'In ease of default being made in payment of any three instalments the entire decretal amount, minus the amount paid, shall fall due at once' and by substituting in lieu thereof the following words, 'If any three instalments are in arrears, the plaintiff may, notwithstanding the provisions of any law for the time being in force, immediately enforce payment of the whole amount then remaining due under the decree.' The rest of the appeal is dismissed.
6. There are certain cross-objections by the plaintiff-respondent. Grounds Nos. 1 and 2 of the cross-objections deal with the granting of instalments covering a period of 15 years, and it is submitted that this was not justified under the circumstances of the case. Regard being had to the amount decreed, we think the Court below did not exercise its discretion arbitrarily in granting these instalments. Ground No. 3 is to the effect that the Court below should have secured the payment of the decretal amount by charging sufficient immovable property of the appellants. In this connexion our attention is drawn to Section 3, Sub-clause (2) of the Act which says that the Court at the time of passing an instalment decree against an agriculturist may either attach his immovable property or declare a charge on such property. It appears that no such request was made before the Court below, at least there is nothing in the judgment of the Court below from which we could infer that any such request was made, and in appeal we cannot possibly find what the circumstances of the defendants are and what the property of the defendants is on which any such charge could be created. We think it is too late in the day for such a request being entertained. There is no force in the cross-objections and they are also dismissed. Under the circumstances we direct the parties to bear their own costs of the appeal and of the cross-objections.