MANMOHAN LAL Vs. SHIB SHANKAR

JUDGEMENT

(1.) This is an appeal by defendant 1 in a suit for sale brought on the basis of a deed of simple mortgage dated 10 September 1928 executed by the appellant in favour of the plaintiff-respondent. The amount claimed by the plaintiff was Rs. 21,604-10-6. The only defences which the appellant put forward to the claim were based on the provisions of the U.P. Agriculturists Relief Act (27 of 1934). It was admitted on behalf of the plaintiff that the appellant was an agriculturist . The first contention raised by the appellant was that the plaintiff had not complied with the mandatory provisions of Section 32 of the Act and that therefore he was liable to the penalties laid down in Section 34. The next plea taken by the appellant was that he was entitled to instalments and to a reduction of the rate of interest in conformity with the provisions of the Act. The Court below accepted the second of the contentions mentioned above and granted certain instalments and allowed interest at the rate which, according to a joint statement of the pleaders for the parties, was the proper rate. With regard to the first contention, the Court below held that the plaintiff was not a creditor within the meaning of that word in the Act and that therefore chapter 5 of the Act was not applicable to the case.

(2.) It has been urged before us on behalf of the appellant that, on the facts found by the Court below, the plaintiff should have been held to be a creditor within the meaning of the Act. The facts found by the Court below are that the plaintiff- respondent, Shib Shanker, carried on money-lending business at Bareilly from 1927 to 1933, that he ceased to carry on that business after 1933 and that he had not done either of the two things required by Sub-section (1) of Section 32 of the Act. No controversy has been raised before us about the facts as they have been found by the Court below. Creditor is defined in Section 2 (7) of the Act as follows: Creditor in Chap. 5 means a person who, in the regular course of business, advances a loan as defined in this Act, and includes the legal representatives and the successors-in-interest, whether by inheritance, assignment or otherwise, of a creditor.

(3.) The view taken by the learned Judge below is that the words of the definition suggest that the man must be carrying on money-lending business at the time when the suit is filed and then alone he can be called a creditor.