RAM NANDAN PRASAD NARAYAN SINGH Vs. KAPILDEO RAMJEE

JUDGEMENT

(1.) The decision of these four appeals, which are connected with each other and which have arisen out of orders made by the H. C. of Patna in four misacllanous appeals, depends on the interpretation of S. 7, Bihar Money lenders (Regulation of Transpotions Act, 1939, The facts which have led to the appeals are found briefly states in the petn. filed by the present applts. in the 3rd Ct. of Sub Judge, Patna, and may be restated here for convenient reference :

(2.) When the decree-holder sought to execute the money decree by attachment and sale of the judgment debtors' properties stating that they were subject to a mtge. lien of Rs. 62-27-13-0 under the mtge. bond dated 6-10-1981, the two judgment-debtors, who are brothers, filed objections under Ss. 11 and 16 of the earlier Bihar Money-lenders Act, III [3] of 1938, and S. 47, C. P. 0. The petns. (two by each of them) were filed separately by the brothers. They urged that on a proper calculation under S. 11 no lien was subsisting on the properties owing to payments made towards the mtge. debt amounting to Rs 92,3942-0. The Subordinate Judge held that this plea of the judgment-debtors could not be entertained in the miscellaneous case before him relating to the execution and all that could be done was to notify the mtge. encumbrance without deciding anything as to the correctness of the amount claimed to be due under it: and this conclusion was partly based on the fact that S. 16 of the Act had been declared by the H. C. void. Appeals taken to the H. C. were dismissed. That judgment-debtors thereupon preferred an appeal to the P. C., contending that Ss. 7 and 13 of the new Act (corresponding to Ss. 7 and 11 of the old Act) were applicable and that it was the duty of the Ct. to estimate the value of the property after making the necessary calculations under. S. 7 with reference to the lien. The decision of the P. C: is reported in Ramnandan Prasad v. Goshwami Madhwanand, 1940 F. O. R. I : (A. I. R. (27) 1940 F. O. 1). The case was remitted back to the H. C., giving liberty to the applts. to file an appln. under S. 13.

(3.) In answer to a fresh appln. for execution dated 2-7-1942, the two brothers filed the same objections as before. Miscellaneous Cases Nos. 45 and 46 of 1942 related to Ss. 7 and 13, Bihar Money-lenders Act and Misc. Cases. Nos. 50 and 52 of 1942 related to the objections under S. 47, C. P. C. The Subordinate Judge held that the amount of loan should be taken as the amount mentioned in the mtge deed of 1931 and not the amount advanced in 1893 and that a sum of Rs. 70,840 was still due on the bond. He determined the market-value of the several properties given as security, adopting 16 times the net income as the basis.