1. This is a defendants' second appeal against an appellate order of the District Judge of Sitapur by which a decree passed by the Munsif, Sitapur, in a suit under Section 33, Agriculturists' Relief Act, was modified.
2. The material facts lie within a short compass : On 19th April 1936, the present respondent, Mohammad Bakhsh, executed a deed of usufructuary mortgage in favour of Munney Khan and Abdul Rauf Khan. As it was a usufructuary mortgage, no rate of interest was specified in the deed, and the profits of the land mortgaged were to be appropriated by the mortgagees in lieu of interest. The mortgage was given for a period of five years. The suit which has given rise to this appeal was instituted by Mohammad Bakhsh in the Court of the Munsif, Sitapur, under Section 83, Agriculturists Relief Act, for an account of the money due under the mortgage. A number of pleas were raised. One of the contentions raised on behalf of the plaintiff was that inasmuch as the mortgagees were creditors within the meaning of that expression as defined in Section 2 (7), Agriculturists' Relief Act, and they had failed to maintain accounts or to furnish the debtor annually with a copy of his accounts, the defendants should not be allowed any interest in accounting between them and the mortgagor, and further that they should not be allowed any costs of the suit. The Munsif on taking accounts between the parties found that the amount due to the mortgagees was Rs. 425 principal and ps. 4-9-7 on account of interest. He allowed the mortgagees their costs of the suit. An appeal was preferred before the District Judge of Sitapur. He, modified the decree of the trial Court and reduced the amount to Rs. 260-13-9 only. He disagreed with the view of the Munsif that the penalties contemplated by Section 34 of the Act Could not be imposed on the mortgagees even though they were 'creditors'. He took the view that the creditor who had failed to maintain an account was liable to the penalties mentioned in Section 34, even in a suit brought by a mortgagor under Section 33, Agriculturists' Relief Act, and inasmuch as no accounts had been maintained and annual copies of the mortgage accounts were not furnished to the debtor he disallowed the mortgagees' costs. Dissatisfied with this decision, the present appeal was filed by the defendants.
3. Only two points were pressed at the hearing. (1) That the Court below was wrong in holding that appellant 1 was proved to be a creditor, and (2) that the suit out of which the appeal has arisen not being one against an agriculturist, Section 34 had no application to such a case.
4. It is sufficient to say with regard to the first of these contentions that there is a clear finding of the learned District Judge that the appellant 1 was 'a professional money lender.' This is a finding of fact and based as it is on the evidence of a number of witnesses, it cannot be challenged in second appeal.
5. With regard to the second contention, the view taken by the learned Judge in the Court below was that the words of Section 34 (a) 'in any suit or proceeding relating to a loan against an agriculturist...' may be interpreted to mean either 'in any suit or proceeding against an agriculturist with respect to a loan' or 'in any suit or proceeding relating to a loan which is outstanding against an agriculturist', that is to say, the word, 'against' may be interpreted as relating back either to 'loan' or to 'suits' or proceedings'. Ha observed, 'In my opinion, it is more in consonance with interpretation suggested by the plaintiff-appellant, viz., that Section 34 is applicable in all proceedings in which a loan outstanding against an agriculturist is involved. I find it difficult to believe that the legislature could have intended that a creditor should be penalised for not complying with Section 32 only in cases where he himself sued for realisation of the loan, and not in cases where his debtor sued him for an account of the loan.' I am unable to agree with the view taken by the learned Judge and to hold that the word, 'against' in the opening line of Section 31 (a) can properly be taken as relating to 'loan'. It must in the context relate to 'suit or proceeding'. It is not possible to read this section in the manner suggested by the learned Judge without introducing some such word as 'outstanding' between 'loan' and 'against'. I am confirmed in this opinion by the language of sub-section (b) which reads as follows:
It the Court finds that the provisions of Clause (a) of Section 32 (1) have not been complied with by the creditor, it may, if the creditor's claim is established in whole or in part, disallow the whole or a portion of the interest found due, as it may deem reasonable in the circumstances of the case, and shall disallow the creditor's costs.
In this sub-section the words 'if the creditor's claim is established in whole or in part' could have no place if the section was intended to refer not only to suits brought against agriculturists but also to suits brought by them, In my opinion, the language of the section is clear and leaves no doubt as to the proper interpretation to Be placed upon it. In such circumstances, is would not be right to allow any speculation as to the policy of the legislature to influence our conclusion as to the right construction to be put upon this section.
6. The appeal is accordingly allowed and the decree of the lower appellate Court modified in respect of the costs of the trial Court which were disallowed to the defendants. The present appellants shall get these costs. The respondent shall farther pay the appellants' costs in this Court In other respects the decree of the lower appellate Court shall stand.