SARWAN CHAUDHURY Vs. CHANARPAT THAKUR

JUDGEMENT

(1.) This is an appeal by the decree-holder. It arises out of an application made by the judgment-debtor under Section 15, Bihar Money-lenders (Regulation of Transactions) Act, 1939. The decree was obtained on a mortgage of the judgment- debtor's kasht land with an area of 11 kathas odd. Under Clause (1)(i) of Section 15 of the Act the Court executing the decree shall exempt from sale one acre of the land comprised in the holding or holdings of the judgment-debtors, if the area of such land does not exceed three acres.

(2.) In the lower Courts the decree-holder sought to defeat the judgment-debtor's objection to the sale of his 11 kathas odd by urging that he was not an agricultural debtor, and this contention was based on the fact that the judgment-debtor admittedly had some zerait land with an area of 5 or 7 kathas, on which stands his house along with his bari. The lower Courts came to the conclusion that as the judgment-debtor received no naqdi or other income from his zerait and as the evidence showed that he earned his livelihood by cultivation and not, as alleged by the decree-holder, by service, the judgment-debtor was an agricultural debtor and as such entitled to the benefit of Section 15 as claimed by him (actually there was a body of judgment-debtors, but I have referred to them in the singular as the judgment-debtor).

(3.) The learned advocate for the appellant has not assailed the view of the lower Courts that the judgment-debtor is an agricultural debtor, but he has argued that having regard to the object of the Act, Section 15 should be taken to exempt from execution sales, land in the possession of the judgment-debtor and not land which, as in the present case, has been parted with by him to a usufructuary mortgagee (sudbharnadar). But the section does not speak of land in the possession of the judgment-debtor. What it does is to exempt from sale "one acre of the land comprised in the holding."