THAKUR RAGHURAJ SINGH Vs. LALA HARI KISHAN DAS

JUDGEMENT

(1.) This is an appeal from a decree of the Chief Court of Oudh at Lucknow setting aside a decree of the Subordinate Judge, Sitapur, which under the provisions of Ss. 5 and 30, U. P. Agriculturists' Relief Act, 27 of 1934, amended a compromise decree, dated 4 July 1933, made in a suit in which respondent 1 was the plaintiff and the present appellant's predecessor in title was the defendant. Thakur Raghuraj Singh, hereinafter called the debtor, who is now deceased and represented by the present appellant was the talukadar of a large property in the District of Sitapur. On 17 February 1928, he borrowed from respondent 1 (hereinafter called the creditor) a sum of Rs. 1,40,000 at 10 per cent. compound interest with six monthly rests on the security of six named villages. On 25 October 1931, he borrowed from the creditor a further sum of Rs. 1,53,000 at 12 per cent. compound interest with six monthly rests on the security of the former six villages and nine additional villages. The date of repayment of both loans was 17 February 1933.

(2.) On 25 April 1933, the plaintiff commenced the suit out of which the present proceedings arise. It was an ordinary mortgage suit claiming a decree for payment of Rs. 3,88,300 the amount then due to the mortgagees, on default of payment sale of the mortgaged properties, and liberty to apply for the recovery of any balance after sale. The suit does not appear to have been contested; the parties arrived at a compromise agreement to be enforced by a decree, and on 4 July 1933, the decree was made by the Subordinate Judge. As amended by the Chief Court it is as follows : "Civil side decree for sale under the terms of compromise (O. 34, R. 4, Act V of 1908 where the Court declares the amount due). IN THE COURT OF THE SUBORDINATE JUDGE, SITAPUR. Suit No. 27 of 1933. Rai Bahadur Lala Hari Kishandas, son of Lala Gobind Prasad, Khunkhunji Road, Lucknow... Plaintiff, versus 1. Thakur Raghuraj Singh son of Thakur Baldeo Singh, resident and Taluqdar of Kanmau and Sita Rasoin, District Sitapur, 2. 2. Thakur SheoGanga Bakhsh Singh, son of Sheo Dan Singh, resident and Zamindar of Bilahri, pargana Mahmudabad, District Sitapur ......Defendants. Claim-To recover Rs. 3,88,300-2-6 by sale of the mortgaged property under mortgage deeds dated 17 February 1928 and 25 October 1931. Valuation for jurisdiction of the Court and court-fees is rupees 3,88,300-2-6 on which a court-fee of Rs. 4500 has been paid. This suit coming on this day of 4 July 1933, in the presence of Babu Bishambhar Dass, advocate for the plaintiff, and of Pandit Raj Narain, advocate for defendant 1, and defendant 2 in person. 1. It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this 4 day of July 1933, is the sum of Rs. 3,88,300-2-6 for principal, the sum of Rs. 9648-11-11 for interest on the said principal, and the sum of Rs. 5523 for the costs of the suit awarded to the plaintiff, making in all the sum of Rs. 4,03,471-14-5 with future interest at 0-8-0 per cent. per month from 5 July 1933, till payment. 2. And it is hereby ordered and decreed as follows: That the said amount with interest be paid in the manner provided in the compromise which forms part of this decree." After a schedule of the mortgaged properties "given under my hand and the seal of the Court this 4 day of July 1933" :- "Translation of copy of compromise filed by the parties in case No. 27 of 1933, decided on 4 July, 1933. Rai Bahadur Lala Hari Kishan Das ... Plaintiff versus 1. Thakur Raghuraj Singh Saheb 2.Thakur Sheo Ganga Bakhsh Singh Defendants Sheweth, That in the above case the parties have come to terms as follows : 1. That a final decree for sale, as sought for, for rs. 3,88,300-2-6 with future interest from the date of suit up to this date at the contractual rate and thereafter at the rate of 8 annas per cent. per month and for costs of the suit may be passed in favour of the plaintiff against the defendants. 2. That as to the satisfaction of the decree-money of the said decree it has been settled that out of the mortgaged property defendant 1 shall execute in favour of the plaintiff a sale deed in respect of some villages which will be selected by the plaintiff, which will be free and clear from all defects, alienations and attachment and which will be sufficient to satisfy the decree-money, and that within one week he shall complete the sale deed and that the plaintiff shall get it executed. 3. That defendant 2 shall execute a deed of relinquishment in respect of those villages which will be sold. 4. That the sale deed in favour of the plaintiff will be absolute but defendant 1 and his heirs, representatives and transferees or to whomsoever he may direct shall be competent in any fallow season in Jeth after 5 years and before another 15 year, whenever he likes, to take back the property sold wholly or in serial order on payment of the stipulated price, and in completing the return of the sale deed the plaintiff and his heirs, representatives and transferees shall have no objection, and every person in whose possession the property sold will stand shall be bound by the said condition and this shall be a main condition of the absolute sale deed mentioned above. 5. That from the date of the sale deed the defendant shall deliver to the plaintiff possession of the property sold and shall cause the mutation of names to be effected. 6. That the price of the property sold has been settled in this way that after deducting revenue, Government remission and sewai items there will be net profit including income from sir and khudkashht for 1339 Fasli according to the Government record and on that net profit price will be fixed at the rate of 6 annas per cent. per month, that is, if the said net profit will amount to Rs. 4-8-0 annually then the price of that property will be Rs. 100. 7. That whatever liabilities in respect of the property sold remain on defendant 1 according to the proposed sale-deed in favour of the plaintiff, then for discharging them the entire village Kanmau inclusive of hamlets shall as hithertofore be deemed to be hypothecated and mortgaged and that from the date of the execution of the sale-deed the entire remaining mortgaged property shall be deemed to be discharged from the charge of the decree. 8. That defendant 1 shall not claim ex-proprietary rights and if he does then he shall be bound to return the price to that extent. 9. That each party is competent to get the decree registered if he likes. (Sd.) P. Kaul, 15 July 1933. Sub-Judge, Sitapur."

(3.) On 26 May 1934, the creditor applied for execution of the above decree of 4 July 1933. The application was resisted and before the execution proceedings had been determined, on 27 April 1935 there came into force the U. P. Agriculturists' Relief Act of 1934. This Act, which is described as "an Act to make provision for the relief of agriculturists from indebtedness" and has a preamble reciting the expediency of making such provision; amongst other sections has the two following provisions: " Section 5. (1) Notwithstanding anything contained in the Civil P. C., 1908, the Court shall, unless for reasons to be recorded it directs otherwise, at any time, on the application of the judgment-debtor and after notice to the decree-holder, direct that any decree for money or preliminary decree for sale or foreclosure passed by it or by any Court whose business has been transferred to it against an agriculturist, whether before or after this Act comes into force, shall be converted into a decree for payment by instalments drawn up in such terms as it thinks fit in accordance with the provisions of Section 3: Provided that any final decree for sale which has not been fully satisfied, passed before this Act comes into force, shall, notwithstanding anything contained in the Civil P. C., 1908, be revisable in the same manner and to the same extent as the preliminary decree for sale or foreclosure passed against an agriculturist. (2) If, on the application of the judgment-debtor, the Court refuses to grant instalments, or grants a number or period of instalments which the judgment-debtur considers inadequate, its order shall be appealable to the Court to which the Court passing the order is immediately subordinate, and the decision of the appellate Court shall be final. S.30. (1) Notwithstanding anything in any contract to the contrary no debtor shall be liable to pay interest on a loan taken before this Act comes into force at a rate higher than that specified in Sch. 2 for the period from I January, 1930, till such date as may be fixed by the Local Government in the Gazette in this behalf. (2) If a decree has already been passed on the basis of a loan and remains unsatisfied in whole or in part, the Court which passed the decree shall on the application of the judgment-debtor amend it by reducing, in accordance with the provisions of sub-s. (1), the amount decreed on account of interest. (3) A decree amended in accordance with the provisions of sub-s. (2) shall be deemed to bear the date of the original decree and, notwithstanding any provision in any law to the contrary, no appeal shall lie from any order amending a decree under that sub-section."