MATHURALAL MANGILAL Vs. GHASIRAM BIRDAJI MALI

JUDGEMENT

(1.) THIS application in revision involves a point of interpretation of Section 15(2) of the Madhya Bharat Money -lenders Act (No. 62 of 1950). The question is, whether the executing Court is bound to take evidence about whether the judgment -debtor is an agriculturist, so that it may, in that event, give him the benefit of the ceiling fixed in regard to interest in the latter part of the section.

(2.) THE facts are the following: The Applicant is the judgment -debtor in a mortgage -decree passed on consent with a provision for instalments, which were not kept up. The decree -holder beginning to levy execution, the Appellant -judgment -debtor urged that he was an agriculturist; therefore, the decree -holder would be deemed to be a money -lender in respect of this decree and accordingly, the total interest payment should be limited to the ceiling in Section 15(2) of the Act. It appears that the executing Court ordered at one stage that the judgment -debtor might adduce evidence about his being an agriculturist as defined in Section 2(11) of the Act. Subsequently, possibly, after a new presiding officer had come, the executing Court refused to go into the matter because "the Money lenders Act had no application to this particular loan". This, the Court might have held on one of the two reasons - -(i) that the Act itself expressly excluded mortgage loans; and (ii) that whether or not the Applicant was an agriculturist, a Court executing a decree, unlike an appellate Court, cannot apply Section 15(1) or (2) in respect of a decree which like the present one, had been passed before the commencement of the Act. If it had been the first ground, the executing Court is obviously mistaken because the original provision in Section 2(6)(d) excluding a mortgage loan was deleted by an amendment that came into force on the 19th October 1955. That, of course, would not entitle the judgment -debtor to a declaration that he is an agriculturist, but an opportunity should be given to show by evidence that he is. If it is the second ground, we should see whether, either Sub -section enables the debtor to show that he is an agriculturist.

(3.) SHRI Sanghi, counsel for the Applicant has really taken his stand on second part of Sub -section (2) of Section 15. Sub -section (2) begins by mentioning future interest which should not exceed 6 p. e. p. a. and continues - -