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Hajee Mohd. Shibli Khan Vs. Ish Datt Dikshit - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All398
AppellantHajee Mohd. Shibli Khan
Respondentish Datt Dikshit
Excerpt:
.....devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - firstly, that the decree having been satisfied section 30, clause 2 could not apply, and secondly, that the decree had not been passed on the basis of a loan......at once, executed a mortgage deed for the satisfaction of the plaintiff-applicant. under this deed he mortgaged certain plots and also the share in the lorry purchased by him in lieu of the unpaid price. it may be mentioned here that in the mortgage deed no interest was charged on the principal amount mentioned therein which was nothing but the unpaid price of the share in the motor lorry purchased by the opposite party. it was further provided that the amount will be paid in ten equal monthly instalments of rs. 50 each. in case of default it was further provided that the opposite party will be liable to pay interest at 2 per cent, per mensem. the instalments not being paid by the opposite party as provided by the deed the applicant instituted a suit to enforce the mortgage and.....
Judgment:
ORDER

Mulla, J.

1. This is a plaintiff's application in revision under Section 115, Civil P.C. It nrises in the following circumstances : The opposite party Ish Dutt purchased a half share in a motor lorry from the plaintiff-applicant for Rs. 500, but being unable to pay the price at once, executed a mortgage deed for the satisfaction of the plaintiff-applicant. Under this deed he mortgaged certain plots and also the share in the lorry purchased by him in lieu of the unpaid price. It may be mentioned here that in the mortgage deed no interest was charged on the principal amount mentioned therein which was nothing but the unpaid price of the share in the motor lorry purchased by the opposite party. It was further provided that the amount will be paid in ten equal monthly instalments of Rs. 50 each. In case of default it was further provided that the opposite party will be liable to pay interest at 2 per cent, per mensem. The instalments not being paid by the opposite party as provided by the deed the applicant instituted a suit to enforce the mortgage and obtained a preliminary decree for sale of the mortgaged property which was eventually made final in June 1935. This decree was put into execution and the mortgaged property was put to sale and purchased by the applicant himself. The decree was for Rs. 600 odd, and the mortgaged property was purchased for Rs. 700 odd. Before the sale could be confirmed by the Court, the opposite party made an application under Sections 5 and 30, Agriculturists' Relief Act praying that the interest should be reduced and the decree should be converted into an instalment decree. The latter prayer was rejected by the learned Munsif on the ground that the final decree for sale having been passed after the passing of the Agriculturists Relief Act the proviso in Section 5 of the Act could not apply The former prayer has however been allowed. Hence this application in revision.

2. The contention on behalf of the applicant is two-fold. Firstly, that the decree having been satisfied Section 30, Clause 2 could not apply, and secondly, that the decree had not been passed on the basis of a loan. With regard to the first contention it is enough to state that it has not been seriously pressed by the learned Counsel in view of the fact that the sale in favour of the applicant had not been confirmed when the opposite party made the application under Sections 5 and 30, Agriculturists' Relief Act. The second contention has however been strenuously pressed and I think it is sound and ought to prevail. The simple question is whether upon the facts stated above, it can be said that the transaction between the parties was one of loan or what could be described as substantially a loan, and that the decree passed on the basis of that transaction is a decree passed on the basis of a loan as contemplated by Section 30(2), Agriculturists' Relief Act. In my judgment the answer is obviously in the negative. It cannot be denied that if the opposite party had not executed the mortgage deed upon which the suit was based and the applicant had had to bring a suit for recovering the price of the share in the motor lorry purchased by the opposite party, it could not possibly have been urged with any show of reason that the claim was based upon a loan or upon any trans, action in the nature of a loan. The question therefore is whether the fact that the opposite party executed a mortgage deed for the satisfaction of the applicant was sufficient to convert the transaction into one of loan as contemplated by the Agriculturists' Relief Act. Now 'loan' as defined by Section 2(10)(a) means an advance to an agriculturist whether of money or in kind and shall include any transaction which is in substance a loan. I am unable to hold that the sale of a half share in motor lorry can be said to be an advance either of money or in kind as contemplated in this definition. Nor do I find any reason to hold that the transaction was in substance a loan. The execution of the mortgage deed by the opposite party could not in my opinion convert the whole transaction into one of loan. It necessarily follows that the decree which the applicant obtained in this case cannot be said to be a decree passed on the basis of a loan and consequently Section 30(2) cannot apply. The result therefore is that I allow this application and set aside the order passed by the learned Munsif. The applicant shall have his costs from the opposite party.


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