BENI MADHO Vs. THAKUR MANOHAR SINGH

JUDGEMENT

(1.) This is a decree holder's appeal arising out of proceedings under Section 8 of the U. P. Debt Redemption Act of 1940 for the amendment of decree. The appeal came up for hearing before a learned single Judge of this Court. He has referred it to a Division Bench as the case is of sufficient importance to merit decision by a Division Bench. The court of first instance held that the provisions of Section 8 of the U. P. Debt Redemption Act of 1940 were applicable to the case and that upon the reopening of the accounts the entire debt must be deemed to have been paid off. The court, accordingly under the provisions of Section 7 of the Act, declared that nothing remained due under the decree and directed that the decree be amended accordingly. Against that decision an appeal was taken by the dcree-holders, but it was dismissed by the lower appellate court. The lower appellate court concurred in the decision of the first court by holding that Section 8 of the Act was applicable to the case.

(2.) It is not disputed that the judgment-debtors had been agriculturists within the meaning of that term under Section 2 (3) of the Debt Redemption Act on all material dates. It is further not disputed that if the provisions of Section 8 of the Act were available to the debtor, then upon proper accounting the debt will be deemed to have been wiped off. The question therefore, is whether Section 8 of the Act has been rightly applied. To determine that question the facts may be briefly stated.

(3.) A mortgage was made on the 26th of February, 1918, in lavour of one Malkhan Singh. A second mortgage was made with respect to the same property on the 11th of December. 1919, in favour of one Ghulam Sibtain and under this second deed money was left with Ghulam Sibtain for the payment of the entire dues under the 1st mortgage. Ghulam Sibtain did not make the payment to the first mortgagee. The mortgagor redeemed the mortgage of Ghulam Sibtain when the first debt still remained unsatisfied. It was on the basis of the mortgage of the 26th of February, 1918, that the present decree had been obtained. The question arose before the learned Munsif as to whether on facts stated above the decree can be said to be "a decree to which this Act applies" passed before the commencement of this Act within the meaning of Section 2 (6) of the Debt Redemption Act of 1940. That the decree was passed before the commencement of this Act was admitted. But was it a decree to which the Debt Redemption Act of 1940 applied? Section 2(6) of the Act says that