BENARES BANK LTD Vs. DWARKA NATH

JUDGEMENT

(1.) This is an appeal by an unsuccessful decree-holder against whom an application by one of the judgment-debtors, under Section 8, U.P. Debt Redemption Act, (Local Act 13 [XIII] of 1940), for amendment of decree No. 22 of 1922, passed on 11 January 1924, by the Subordinate Judge of Benares, under Order 34, Rule 5, Civil P.C., was granted. The facts are briefly these : The following pedigree will be useful:

(2.) The learned Additional Civil Judge has described Dwarka Nath alias Bachcha. The learned Counsel for the parties are agreed that this is a mistake and that Bachcha is the alias of Kedar Nath. It is common ground that the members of the above family are still joint. On 25 January 1912, Makund Lal, Durga Prasad, Bhagwanji, Ramji and Gorakh Nath for self and as guardian of his minor sons, Badri Nath and Bachcha, executed a hypothecation bond, in the nature of a security bond, to secure the payment of loana up to a maximum of Rs. 30,000, in favour of the Benares Bank Ltd., Benares. These loans were accordingly taken from time to time. On 28 October 1915, a promissory note was executed by Makund Lal for a sum of Rs. 17,347-4-0. On 28 October 1918, Gorakh Nath, Ramji and Bhagwanji executed a promissory note for Rs. 21,500 and on 23 July 1920 the Bank filed a suit for the recovery of Rs. 21,500, together with interest at nine per cant, per annum against Gorakh Nath and his two brothers and four sons, of whom Kedar Nath, Baij Nath and Dwarka Nath were minors and who were cited as defendants under the guardianship of their father, Gorakh Nath. This was Suit No. 22 of 1922. The preliminary decree under Order 34, Rule 4, Civil P.C., was passed on 12 July 1923, and the final decree for sale under Order 34, Rule 5, followed on 11 January 1924. During the pendency of the execution proceedings Gorakh Nath died and his name was removed. The application, which has given rise to the present appeal, for the relief mentioned above, was made by Dwarka Nath. He claimed the benefit of the U.P. Debt Redemption Act, Local Act 13 [XIII] of 1940, as also of the Agriculturists Relief Act, Local Act 27 [XXVII] of 1934. It was contended that the judgment-debtors were both agriculturists under the above Acts and workmen under the Act of 1940.

(3.) The Benares Bank Ltd., which has since gone into liquidation, was cited as a defendant, along with the other members of the family, but it alone entered defence. Various pleas were raised, but those which have been reiterated before us are only these. It is contended that the judgment-debtors were not agriculturists on the date of the loan or even on the date of the application; they certainly neither were nor are workmen. And, lastly, it was pleaded that they are not entitled to the benefits of the U.P. Debt Redemption Act, inasmuch as the Bank had, in the course of the present execution proceedings, made the declaration contemplated by Sub-section (3) of Section 4 of the Act that the decree shall not be executed against the land, agricultural produce or person of such agriculturist.