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Mir Umrao Ali Vs. Subedar Rup Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All26
AppellantMir Umrao Ali
RespondentSubedar Rup Singh
Excerpt:
.....has already been passed on the basis of a loan and remains unsatisfied, the gourd which passed the decree shall on the application of the judgment-debtor amend it by reducing in accordance with the provisions of sub-section (1), the amount due on account of interest. provided further that, if the court is satisfied that on account of an agricultural calamity the payment of any instalment by a judgment-debtor is likely to cause hardship, it may, after notice to the decree-holder, allow some further time for payment of such instalment as it may consider proper. this was not a case where it was suggested that payment of any particular instalment would be likely to cause hardship because the application was clearly one directed against the whole of the previous order and one praying for an..........relief act, 1934 but the interest does not appear to have been reduced. on 3rd february 1936 the learned judge passed an order suo motu that the decree should be amended in the light of recent legislation and he issued notice to the parties summoning them before him. on 25th february 193fi the parties duly appeared and after hearing them, the learned civil judge reduced the interest payable on this loan in accordance with section 30, agriculturists' belief act, which brought the decretal amount down to rs. 2,749-4-0. he further ordered that the decree should be payable in four instalments to be paid on 1st march 1937, 1938, 1939 and 1940. on 8th april 1936 the judgment-debtor respondent made another application to the court praying that the number of instalments should be increased to.....
Judgment:

Harries, J.

1. This is a decree-holder's application for revision of an order of the learned Civil Judge of Pithoragarh dated 25th May 1936 read with a decree dated 25th February 1936. The facts of the case can be shortly stated as follows : On 4th January 1936 the present applicant obtained a mortgage decree against the respondent for a sum of Rs. 3,091-4-9. The defendant-respondent had claimed a reduction of interest under the provisions of the Agriculturists' Relief Act, 1934 but the interest does not appear to have been reduced. On 3rd February 1936 the learned Judge passed an order suo motu that the decree should be amended in the light of recent legislation and he issued notice to the parties summoning them before him. On 25th February 193fi the parties duly appeared and after hearing them, the learned Civil Judge reduced the interest payable on this loan in accordance with Section 30, Agriculturists' Belief Act, which brought the decretal amount down to Rs. 2,749-4-0. He further ordered that the decree should be payable in four instalments to be paid on 1st March 1937, 1938, 1939 and 1940. On 8th April 1936 the judgment-debtor respondent made another application to the Court praying that the number of instalments should be increased to 15 instalments and on 25th May 1936 the learned Civil Judge passed an order ordering the payment of the decretal amount in nine instalments. The present revision is directed against this order of 25th May 1936 read with the previous order of 25th February 1936.

2. It has been contended in the first place by counsel for the decree holder that the learned Judge had no right whatsoever to reduce the interest payable upon the loan in this case. Section 30(1), U.P. Agriculturists' Relief Act, provides that notwithstanding anything in any contract to the contrary, no debtor shall be liable to pay interest on a loan taken before this Act comes into force at a rate higher than that specified in Schedule 3 for the period from 1st January 1930 till such date as may be fixed by the Local Government in the Gazette. It is to be observed that this section is mandatory and provides that no debtor shall be liable to pay interest on the loan at a higher rate than that specified. It appears that when the learned Judge passed the mortgage decree, he over, looked the terms of this section. However, it is provided by Section 30(2) of the Act that if a decree has already been passed on the basis of a loan and remains unsatisfied, the Gourd which passed the decree shall on the application of the judgment-debtor amend it by reducing in accordance with the provisions of Sub-section (1), the amount due on account of interest.

3. In short, if the Court passing the decree has not reduced interest in accordance with Section 30(1), it must do so upon application made to it by the judgment debtor. In the present case, it appears that no application was made by the judgment-debtor and the Court of its own motion reduced the interest though it gave the parties an opportunity of being heard before it did so. It has been argued before us that the order reducing interest passed on 25th February 1936 was made without jurisdiction inasmuch as the judgment-debtor had never made an application for such reduction of interest. The point is a technical one and is really without merits. It is true that there was no application on behalf of the judgment-debtor but as the parties were summoned before the Court, and had an opportunity of being heard, it cannot be said that the decree-holder has in any way been prejudiced. Even if we set aside this order reducing interest, it would be open to the judgment-debtor immediately to apply for such reduction and the Court would be bound to reduce the interest in accordance with the terms of Section 30(1) of the Act. Though the decision of the Court below reducing interest is not in accordance with the provisions of Section 30(2) of the Act, yet we do not think it is a case in which we should interfere under our revisional powers. Justice has been done and that being so, the order of 25th February 1936 reducing interest will stand. That order also ordered payment of the decretal amount in four instalments. The learned Judge could under the provisions of Sections 3 and 5 of the Act, order payment by instalments. Proviso 1 to Section 3(1) of the Act is in these terms:

Provided that the period of such instalments shall not extend beyond four years from the date of the decree in the case of an agriculturist to whom Ch. 3 applies, and beyond 15 years from such date in the case of other agriculturists.

4. It has now been held in this Court that a mortgagor agriculturist is an agriculturist to whom Ch. 3 applies and therefore in a case of a mortgage debt, the agriculturist debtor can ask the Court to order payment by instalments spread over a period of four years from the date of the decree. It has been held that where a decree is converted into an instalment decree, the date of the decree is the date of the instalment decree and not the date of the original decree. It was therefore open to the learned Judge to grant instalments to be paid during a period of four years from 25th February 1936. He has ordered payment by four instalments, but the last instalment is made payable on 1st March 1940. Strictly, the last day on which an instalment could be made payable is 25th February 1940, but the difference is only a matter of days, and counsel for the decree-holder has no objection to the order standing in its present form. The matter is of so little importance that in any event we should not interfere in revision where the time allowed is only a few days more than that allowed by statute.

5. On 8th April 1936, as we have stated previously, the respondent made another application, praying that the number of instalments should be increased to 15 and upon this application the learned Judge on 25th May 1936 increased the number of instalments to nine, and in our judgment he had no jurisdiction whatsoever to pass this order. Section 5(2) of the Act provides that if a judgment-debtor is dissatisfied with a number or periods of instalments, he can appeal to the Court to which the Court passing the order is immediately subordinate and the decision of the Appellate Court shall be final. If the judgment-debtor was dissatisfied with the decision given on 25th February 1936, he ought to have appealed but he did not do so. On the other hand he filed another application on 8th April 1936 asking the Court which passed the instalment decree to vary its own decree. In our view the Court had no jurisdiction whatsoever to entertain such an application, but even if it had, the order of the learned Civil Judge cannot possibly be sustained. He increased the number of instalments to nine to be spread over a period of nine years. We have pointed out previously in this judgment that as the judgment-debtor was an agriculturist to whom Ch. 3 applied, instalments could be granted and spread over a period not exceeding four years.

6. The present order entirely disregards Proviso 1 to Section 3(1) of the Act and treats the judgment-debtor upon the same footing as agriculturist to whom Ch. 3 does not apply. In our view, once it was established that the judgment-debtor was a mortgagor agriculturist, the Court had no jurisdiction whatsoever to order instalments to be spread over a period exceeding four years. It has been argued on behalf of the respondent that the learned Judge could grant an extension of time under Proviso 2 to Section 3(1) of the Act. That proviso reads as follows:

Provided further that, if the Court is satisfied that on account of an agricultural calamity the payment of any instalment by a judgment-debtor is likely to cause hardship, it may, after notice to the decree-holder, allow some further time for payment of such instalment as it may consider proper.

7. In our view, the learned Judge did not purport to act under this Proviso and indeed could not do so, having regard to the facts of this particular case. This was not a case where it was suggested that payment of any particular instalment would be likely to cause hardship because the application was clearly one directed against the whole of the previous order and one praying for an increased number of instalments. In any event there is no finding that there had been an agricultural calamity within the meaning of this Proviso. Agricultural calamity is defined in Section 2(1) of the Act and there is no suggestion that such a calamity had occurred in this case. The learned Judge gives his reasons for increasing the number of instalments and it is clear that he did so because the judgment-debtor was a military officer in receipt of a small pension. He states that it was advisable in the interests of justice to grant the judgment-debtor's application, but in our view it is not in the interests of justice to act contrary to the clear terms of the statute and to pass orders in a case in which there is no jurisdiction whatsoever to pass such orders. In our judgment the order of 25th May 1936 was made wholly without jurisdiction and must be set aside.

8. The result therefore is that we allow this application and set aside the order of 25th May 1936 and direct that the order of 25th February 1936 will stand with this variation that the last instalment payable on 1st March 1930 must also include all interest due at that date. The applicant must have the costs of this application and of the application of 8th April 1936 which led to the order of 25th May 1936.


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