KHACHERU MAL Vs. SHIB LAL

JUDGEMENT

(1.) This is an application under Section 25, Provincial Small Cause Courts Act, and raises a point of some interest. The plaintiff-applicant sued to recover Rs. 180 on foot of a bond dated 24 June 1988. The only issue raised was: Is the plaintiff a money-lender? Upon this the learned Judge found that the plaintiff was not proved to be a money-lender, but that Section 5, U.P. Postponement of Execution of Decrees Act (Act 10 of 1937), was not applicable in the case of debts incurred after that Act came into force and therefore the suit was barred by limitation. The section provides as follows: In computing the period of limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for (a) the institution of a suit in a civil Court against an agriculturist for money or for foreclosure or sale in enforcement of a mortgage, and (b) the execution of such decree as is referred to in Section 3, and not covered by Section 6, the period during which this Act shall remain in force, shall be excluded.

(2.) The cases to which this provision has been applied in the past, were cases of debts incurred before the Act came into force, the position in regard to which was that in consequence of the provisions of Section 3 of the Act a creditor even if he obtained a decree would be unable to execute that decree during the period in which the Act might remain in force. The learned Judge of the Small Cause Court interpreted Sub-section (1) of Section 3 of the Act as "laying down that it applied to decrees and cases in which liability was incurred prior to the passing of the Act."

(3.) It is, of course, true that so far as Section 3 is concerned, it does only apply to decrees in respect of such debts; but it is obvious that prima facie Section 5 is in much more general terms. It is, I think, arguable that it might have been the intention of the Legislature to limit the application of Section 5 to cases of debts incurred before the Act came into force. The argument would proceed upon these lines. Act 10 of 1937 does not of itself operate to stay proceedings in suits. Section 8 operates to stay the execution of certain decrees for the benefit of certain grades of agriculturists, if those decrees are in respect of a debt or a liability incurred prior to the passing of the Act. Section 5 permits a creditor to wait until the Act ceases to be in force before filing his suit, apparently for the reason that such a decree if obtained by the creditor would fall within the mischief of Section 3 and be unexeeutable. But the case of a creditor who sues to recover money in respect of a liability incurred after the passing of the Act, stands on a different footing. There is nothing in the Act which operates to prevent him from instituting a suit, and what is more important and differentiates such a creditor from a creditor affected by Section 3 is that when he obtains his decree, there is nothing in Act 10 of 1937 to prevent him from executing it. It may accordingly be argued that such a creditor should not be held entitled to the benefit of Section 5 which is intended to benefit persons whose decrees if obtained would not be executable.