MADAN LAL Vs. DISTRICT JUDGE PAURI GARHWAL

JUDGEMENT

(1.) The Petitioner Madan Lal borrowed money from a widow Smt. Premalata Devi resident of Badrinath Mat, Kotdwara district Pauri Garwhal. The amount was Rs. 4,270/-. The money was not returned to the widow consequently she had to take recourse to filing a Suit No. 9 of 1968 for recovery of this amount before the Court of Munsif, Lansdowne. The suit was decreed on 2 August, 1972. It appears from the record that no appeal was filed against the judgement and order of the trial court. Subsequently, the widow put in execution of the decree which she had obtained. This was numbered as Case No. 9 of 1984 before the Munsif, Lansdowne. Subsequently during the pendency of the execution case, 12 years after it was decreed, becoming wiser that a plea under the Regulation of Money Lending Act, 1976 was available the petitioner took recourse to objections under S.47 of the Code of Civil Procedure on the ground that a decree cannot be executed for reasons that the widow aforesaid was a money lender within the meaning of S.26, Sub-Sec. (4) of the Act aforesaid.

(2.) Learned Munsif rejected the objection on 4 September, 1984. Petitioner preferred a revision before the District Judge, Pauri, which was allowed, in effect by an order of remand on 23 February, 1985 for the matter to be reconsidered in the light of certain directions given by the District Judge. Thereafter the execution case was registered as Civil Miscellaneous Case No. 3 of 1985. Consequent upon remand the Munsif allowed the objection of the petitioner and directed that the execution be struck off and in effect consigned it to the record by maintaining that in view of Sub-Sec. (4) of S.26 of the Act aforesaid, the widow being a money lender the decree could Not be executed. The widow preferred a revision before the District Judge, Pauri Garhwal. This was numbered as revision No. 3 of 1985.

(3.) Learned District Judge set aside the order of the Munsif, in effect, holding that the finding of the Munsif that the widow was a money lender within the meaning of the Act was perverse. Perverse indeed it was. While the Munsif was examining the matter upon remand he set on record that he had given an opportunity to both the parties to produce evidence. There was an obligation upon the judgement-debtor petitioner to produce evidence to the effect that the widow was a money lender within the meaning of Sub-Sec. (6) of S.3 of the Act aforesaid, and thus the decree in pursuance of S.26, Sub-Sec. (4) of the Act, aforesaid could not be executed. It is on record that the petitioner judgement-debtor did not adduce any evidence whatsoever. Thus the question of accepting objections of the petitioner judgement-debtor under S.47 of the Code aforesaid did not arise.