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Shil Gange and anr. Vs. B. Manoharlal - Court Judgment

LegalCrystal Citation
Subject Family
CourtAllahabad
Decided On
Reported inAIR1945All346
AppellantShil Gange and anr.
RespondentB. Manoharlal
Excerpt:
- .....of which the present appellants are members executed a mortgage deed in favour of manohar lal, decree-holder respondent, for a sum of rs. 5618. this consideration was made up of amounts due on the basis of two promissory notes executed by prabhu lal in favour of manohar lal. manohar lal put the mortgage into suit in the year 1933 and eventually obtained a final decree for the sale on 14th march 1936. the judgment-debtor-appellants applied for the amendment of this decree under section 8, debt redemption act. the application of the judgment-debtors was opposed by the decree-holder on the ground that the joint hindu family of which the appellants were members, was assessed to income-tax in the year 1932, in which year the mortgage deed was executed and that as such the joint family or.....
Judgment:

Iqbal Ahmad, C.J.

1. This is an appeal by judgment-debtors whose application for amendment of a decree under Section 8, Debt Redemption Act (13 of 1940), has been dismissed by the Court below on the ground that on the date of the advance of the loan which culminated in the decree, the appellants were not agriculturists. The facts are no longer in controversy and are as follows:

2. On 23rd January 1932 one Prabhu Lal who was the manager of the joint Hindu family of which the present appellants are members executed a mortgage deed in favour of Manohar Lal, decree-holder respondent, for a sum of Rs. 5618. This consideration was made up of amounts due on the basis of two promissory notes executed by Prabhu Lal in favour of Manohar Lal. Manohar Lal put the mortgage into suit in the year 1933 and eventually obtained a final decree for the sale on 14th March 1936. The judgment-debtor-appellants applied for the amendment of this decree under Section 8, Debt Redemption Act. The application of the judgment-debtors was opposed by the decree-holder on the ground that the joint Hindu family of which the appellants were members, was assessed to income-tax in the year 1932, in which year the mortgage deed was executed and that as such the joint family or the members thereof could not be deemed to be agriculturists in that year and accordingly the appellants were not entitled to the benefit of the provisions of the Debt Redemption Act. The Court below accepted this contention of the decree-holder and dismissed the application made by the judgment-debtor appellants for amendment of the decree. The view taken by the Court below that in order to attract the application of Section 8 of the Act, it is necessary that the loan should have been made to an agriculturist is unsustainable in view of the Full Bench decision of this Court in Ketki Kunwar v. Ram Swaroop ('42) 29 A.I.R 1942 All. 390. It was held in that case that

where the advance is recoverable from the property of an agriculturist the proviso to Section 2(9), Debt Redemption Act, has no application and the case is governed by the main clause of Section 2(9).

It was further held in that case that

where the advance is recoverable only from the property of an agriculturist, it is not necessary that the advance should have been also made to an agriculturist.

In the case before us, as already stated, the mortgage of 1932 has merged into a decree which directs the sale of the mortgaged property. The loan that has culminated in the decree is, therefore, recoverable from the property of the judgment-debtors appellants who undoubtedly were agriculturists on the date that they applied for the amendment of the decree. The case is, therefore, governed not by the proviso to Sub-section (9) of Section 2 but by the main paragraph of Sub-section (9). It was pointed out in the course of the argument that as the mortgage of 1932 was put into suit within six years, a simple money decree can be obtained by the decree-holder against the judgment-debtors appellants and as such the proviso to Sub-section (9) of Section 2 applies. In view of the provisions of Section 21 of the Act, this argument cannot be accepted. Section 21 provides that:

Notwithstanding the provisions of Rule 6 of Order 34 a simple money decree cannot be passed in favour of a mortgagee where the mortgagee has, on a loan secured by a first mortgage, obtained a decree for sale and the net proceeds of the sale of the mortgaged property are found insufficient to pay the amount due to the mortgagee.

In the present case the loan due on the basis of the two promissory notes was secured by a first mortgage and it is, therefore, manifest that even in the event of the mortgaged property proving insufficient for the satisfaction of the decree the decree-holder will not be entitled to get a simple money decree under Order 34, Rule 6 against the judgment-debtor appellants. The judgment-debtor appellants are, therefore, not personally liable for the decretal amount and as such the proviso to Sub-section (9) has no application to the present case. For the reasons given above, we allow this appeal, set aside the decision of the Court below and remand the case to that Court with a direction to restore the application of the judgment-debtor-appellants under Section 8, Debt Redemption Act, to its original number and dispose of the same according to law. Costs here and hitherto will be the costs in the cause and will abide the result.


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