RAJENDRA Vs. BALMUKAND

JUDGEMENT

(1.) THIS is a second appeal by the decree-holders. On the basis of a simple mortgage deed they obtained a decree for sale under Order 34, Rule 4, Civil P. C. on 24-8-1939 and a final decree under Order 34, Rule 5, Civil P. C. on 15-8-1942. They applied for execution of the final decree on 8-7-1944. On 27-8-1945 the judgment-debtors lodged a petition of objections and therein claimed that they were agriculturists within the meaning of the Agriculturists' Relief Act and the debt Redemption Act. On the basis of that claim they prayed that the interest awarded in the decree might be reduced. The decree-holders denied the judgment-debtors' status as agriculturists.

(2.) AT the time of hearing, the judgment-debtors gave up their claim as agriculturists under the agriculturists' Relief Act, and the learned Munslf recorded a definite finding that they were not agriculturists within the meaning of the said Act. This finding has not been challenged at any stage of the litigation. The learned Munsif, however, held that "the judgment-debtor is an agriculturist so far as the Debt Redemption Act goes. " It may be pointed out that the learned munslf speaks of the judgment-debtor in singular number, but obviously he meant that both the judgment-debtors (who are brothers) were agriculturists. This finding was based on a certain khatauni in which the name of Balmukand (one of the judgment-debtors) was recorded in respect of plots Nos. 713 and 719. Treating the judgment-debtors as agriculturists, the learned Munsif amended the decree and reduced the amount of interest.

(3.) THE decree-holders preferred an appeal which was heard by the learned District Judge of agra. By the time the appeal came up for hearing the Commissioner of Agra Division had ordered the expunction of the entry on the basis of which the learned Munsif had treated balmukand and his brother as agriculturists. The decree-holders sought the learned District judge's permission to produce a copy of the Commissioner's judgment which had come into existence during the pendency of the appeal in the learned District Judge's Court. This prayer was refused and on the basis --of the materials already on the record the learned District Judge upheld the decision of the learned Munsif.