DANDAPANI GOWDA Vs. BISHUN DAS

JUDGEMENT

(1.) This is a decree-holder's second appeal from the decision of the learned Additional Subordinate Judge of Berhampur, reversing that of the District Munsif of the same place in execution proceedings. The facts leading up to this appeal are as follows. The respondent executed a mortgage bond in 1910 in favour of one Ghaitana Goudo. Original Suit No. 9 of 1922 was instituted by the mortgagee's sons. The Madras High Court passed a preliminary decree in the suit on 4 April 1933, and on 3l January, 1939, the final decree was drawn up. Execution was taken out of this decree by the assignee of the decree from the original decree- holders. In that execution case the judgment-debtor made an application under Section 10, Orissa Money-Lenders Act (Orissa Act 3 [III] of 1939) for sealing down the decree. This objection of the judgment-debtor was numbered as Miscellaneous judicial case No. 16 of 1940. The opposite party to that case (the assignee of the decree-holders) contended in the Court of first instance that the original mortgagee-decree-holder was not a money-lender within the meaning of the Act, and that, therefore, Section 10 of the Act could not apply. It does not appear to have been contended in the first Court that Section 10 read with Section 16.of the Act did not apply to the case. The executing Court took the view that Section 10 read with Section 16, Money-Lenders Act was applicable to the case, provided that it was proved that the original mortgagee decree-holder was a money-lender. And, on taking evidence, it came to the conclusion that the original mortgagee-decree- holder was not a money-lender as defined in the Act, and, in that view of the case, dismissed the judgment-debtor's application.

(2.) On an appeal by the judgment-debtor, the lower appellate Court came to the conclusion that the judgment-debtor was entitled to relief under Section 10 read with Section 16 of the Act in the view it took of the evidence that the mortgagee- decree-holder was a moneylender. Thus, on the only question of if act in, controversy between the parties, the lower appellate Court reversed the decision of the trial Court. In the result, the lower appellate Court directed that the decretal amount should be reduced to double the principal sum advanced with interest for the period subsequent to the institution of the suit, as also cost. Hence, this second appeal by the decree-holder.

(3.) It was contended, in the first instance, by Mr. Chatterji appearing for the appellant that the finding of the lower appellate Court that the original mortgagee- decree-holder was a money-lender is not correct. But this finding, is essentially one of fact, and is, therefore, binding on this Court in second appeal. It must, therefore, be held that the judgment of the lower appellate Court cannot be assailed on the ground that the finding is incorrect.