RAJDEO DUBE Vs. BRIJ NARAIN SINGH AND OTHERS

JUDGEMENT

(1.) This is an application for revision of an order passed by a Civil Judge of Jaunpur dismissing the applicant's application for reduction of his decretal debt under Sec. 4 of the Zamindars' Debt Reduction Act, No. XV of 1953. The opposite party No. 1 sold his proprietary rights in certain villages to the applicant for more than a lac of rupees on 25-4-1946; part of the price was paid in cash and part through cheques drawn on a certain bank of Calcutta. The bank went into liquidation and stopped payment of the cheques. Thereupon the opposite party filed a suit for recovery of the balance of the price and a preliminary decree under Or. XXXIV, R. 4 C.P.C. was passed in his favour calling upon the applicant to pay to him a sum of Rs. 51,000/. and odd within a certain time and directing, in default, a final decree for sale of some of the sold property. The preliminary decree was not satisfied and a final decree for sale of the property for Rs. 62,000.00 and odd was passed on 19-1-1952. Before it could be sold the Zamindari Abolition and Land Reforms Act came into force on 1-7-1952. The Zamindar's Debt Reduction Act came into force on 25-51953 and the applicant applied for reduction of the amount of the final decree under Sec. 4 of it. Sec. 4 (2) (b), which is relevant in this case, is to the effect that the court which passed a decree in a suit "relating to a secured debt" shall, on the application of the judgment-debtor, calculate the amount due on the 1st day of July, 1952, from the judgment-debtors, apportion the amount between them and reduce the amount in the case of each of them in accordance with the formula given in Schedule I. Actually sub-Sec. (1) of Sec. 4 requires the court which passed a decree in such a suit to proceed as stated in sub-Sec. (2) or sub-Sec. (3). Sub-Section (2), the gist of which is stated above, applies "where the mortgaged property charged under the decree consists exclusively of estate" and it has been acquired under the Zamindari Abolition and Land Reforms Act, while sub-Sec. (3) applies when the mortgaged property charged under the decree consists partly of estate and partly of non-estate property. "Debt" is defined in the Act to mean "an advance in cash or in kind" and to include "any transaction which is in substance a debt." "Mortgage" with its cognate expressions is defined in the Act to have the meaning assigned to it in the Transfer of Property Act and to include a charge as defined in Sec. 100 of it. "Mortgage" is defined in the Transfer of Property Act, to mean "transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability," "transfer" is defined to mean "an act by which a living person conveys property, in present or in future, to one or more other living persons," "to transfer property" is defined to mean "to perform such act" and "charge" arises under Sec. 100 when immoveable property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to a mortgage. Certain debts are excluded from the amount to a mortgage. Certain debts are excluded from the definition of "debt"; the debt that was due from the applicant to the opposite party is not one of them. The applicant's application was contested by the opposite party on the grounds that there was no debt due to him from the applicant, that even if there was a debt it was not a secured debt and that consequently he could not claim the benefit of Sec. 4 of the Zamindar's Debt Reduction Act. The Civil Judge who had passed the final decree and to whom the application under Sec. 4 was made upheld the opposite party's objection and dis-missed the application and he has come up in revision against the order because no appeal is provided against it in the Act.

(2.) For the applicability of Sec. 4, besides there being a decree in a suit relating to a secured debt, there must also be mortgaged property; if there is no mortgaged property the court passing the decree cannot proceed either under sub-Sec. (2), or under sub-Sec. (3) and sub-Sec. (1) would be rendered abortive. No interest in the sold property was transferred by the applicant to the opposite party after the sale of it for the purpose of securing the payment of the price; there was, therefore, no mortgage as defined in the Transfer of Property Act. There was, however, a charge because the sold property was, by operation of law, made security for the payment of its price to the opposite party, vide Sec. 55(4), Transfer of Property Act. Mortgaged property includes charged property according to the definition of "mortgage" in the Zamindar's Debt Reduction Act and thus there was mortgaged property in the instant case.

(3.) Nothing was advanced in cash or in kind by the opposite party to the applicant; the applicant's liability arose out of the sale of the property by the opposite party to him. The definition of "debt", e.g. "an advance in cash or in kind" applies to the word used in the definition itself; so "debt" means an advance in cash or in kind, or a transaction which is in substance an advance in cash or in kind and the question before us is whether the transaction can be said to be in substance an advance in cash or in kind. The transaction resulted in a pecuniary liability, but that is not enough to convert the liability into "debt" as defined in the Act. The essence of an advance is lacking in the cash and I do not think it can be said that the transaction was in substance an advance. The opposite party gave him land but it was by way of sale and could not possibly be said to be an advance of its price in substance. Apart from the land nothing was delivered to the applicant by the opposite party.