SHIB CHARAN LAL Vs. ZALIM SINGH

JUDGEMENT

(1.) This is an appeal from a judgment of the Additional District Judge of Aligarh directing a decree passed in favour of the appellant and against the respondent to be amended Under Section 9, Debt Redemption Act. The facts are as follows: In 1913 Mathura Prasad and others executed a mortgage of the whole of village Chandua in favour of Ganesh Singh (father of the respondent judgment debtors). In 1922 Dwarka, who belonged to the family of Mathura Prasad and was probably one of his heirs, executed a mortgage in favour of the appellant decree-holder Sheo Charan Lal in respect of a one-fourth share in the village and some other property with which we are not concerned. In 1925 Ganesh Singh put his mortgage into suit but without impleading Sheo Charan Lal as the puisne mortgagee, got a decree, put it into execution, got the entire village put to auction, himself purchased it in 1929, and obtained formal delivery of possession in the same year. On 29th April 1932, the appellant sued on the foot of his mortgage; the suit was instituted against Ganesh Singh as successor-in-interest of the original mortgagor Dwarka. The parties came to terms and on 5th November 1932 a preliminary compromise decree was passed against Ganesh Singh. Under its terms Ganesh Singh was to pay the decretal amount to the appellant within six months, on his failure to do so the appellant was to have the right to redeem the mortgage of Ganesh Singh within the next six months and then put the entire village to auction free from Ganesh Singh's mortgage in execution of his decree, and on his failure to do that he was given the right to put only a one-fourth share in the village to auction in execution of the decree. Ganesh Singh defaulted in paying the decretal amount to the appellant and the appellant also defaulted in redeeming Ganesh Singh's mortgage. The appellant obtained a final decree for sale of the one-fourth share in the village and applied for its execution. Ganesh Singh being dead, his son, the respondent, filed an objection to the execution on several grounds. The only objection with which we are concerned is that he claimed amendment of the decree, Under Section 9, Debt Redemption Act by reduction of interest. The appellant contested his objection, contending that the advance made by him to Dwarka had ceased to be a 'loan' because of the transfer of the property to Ganesh Singh in execution of his decree. The trial Court agreed with the appellant, and, holding that the advance had ceased to be a 'loan' on account of the transfer of the liability in execution of the decree rejected the respondent's prayer for an amendment of the decree. The lower appellate Court, on appeal, held that the liability to repay the advance of the appellant was not transferred to Ganesh Singh in execution of a decree and ordered the trial Court to amend the decree. This is the order challenged before us by the decree-holder.

(2.) The only question, therefore, which we have to determine is whether the debt evidenced by the decree passed on the second mortgage dated 13th October 1922, was a 'loan' or it has ceased to be a 'loan' within the meaning of Section 2 (9), U. P. Debt Redemption Act. In the Courts below it was contended on behalf of the decree-holder that the debt had ceased to be a a 'loan' on two independent grounds, the first being that the liability had been transferred to another person by contract with the 'successor' of the borrower under the compromise, dated 15th November 1932, that successor being the first mortgagee-auction-purchaser, namely Ganesh Singh and the second being that the liability had been so transferred as a result of the auction sale of the 20 biswa zamindari share in 1929 in execution of the decree passed on the first mortgage. It is obvious that, if on either of the two grounds the liability can be held to have been transferred to a third person, the debt will certainly be held to have ceased to be a 'loan.' So far as the first basis of the contention of the decree holder was concerned, we are not prepared to accept it. The word 'successor' in the said section has reference to a successor by inheritance and not by transfer or by purchase at an auction. So far as the second basis of the claim, however, was concerned, we think that the case of the decree-bolder stands on an indisputable ground and, indeed, the arguments of his learned counsel in this Court have been confined only to that basis.

(3.) In every sale in execution of a decree if the property sought to be sold is charged with a debt, the same must be mentioned in the sale proclamation under the provisions of Order 21, Rule 66 (9) (c), Civil P. C. It was not suggested in the present case that Ganesh Singh had purchased the property in execution of his decree on the first mortgage free of the charge evidenced by the second mortgage in favour of the present appellant. The result, therefore, was that the entire 20 biswa share was sold at auction to Ganesh Singh subject to the charge created by the latter mortgage just mentioned. The short question arising in this appeal is, whether or not this implied necessarily a transfer of the debt created by this second mortgage also to the auction purchaser Ganesh Singh, along with his purchase of the entire 20 biswa share. In our opinion it did, and Ganesh Singh by purchasing the property encumbered with the later debt did also become liable to satisfy that debt, so that the same inevitably ceased to be a 'Joan' within the meaning of Section 2 (9), U. P. Debt Redemption Act.