RAM GHULAM Vs. BANDHU SINGH

JUDGEMENT

(1.) This is an application in revision against an order passed by the learned Munsif of Chandausi in the course of the proceedings in execution of a decree. The suit which gave rise to these proceedings was instituted on 27 February, 1935. It was a suit for the recovery of a sum of Rs. 1,040 with interest by the sale of property mortgaged by a deed dated 6 May 1927. The defendants to the suit were the heirs of the deceased mortgagor and a subsequent purchaser of the property who is now the opposite party to this application. This subsequent purchaser Bandhu Singh acquired the property by sale in the month of August 1933. He paid a sum of Rs. 3,100 for the property. Out of this sum, Rs. 750 were left in his possession in order that he might redeem the mortgage of 6 May 1927. He did not redeem and it was for this reason that the suit was instituted. The learned Munsif passed a preliminary decree on 27 March 1935 and then Bandhu Singh put in an application that the decree might be converted into a decree for payment by instalments under the provisions of Section 5, Agriculturists Belief Act. The learned Munsif accepted his contention, reduced the interest and directed that payment should be made by annual instalments of Rs. 150.

(2.) Two points are raised by the applicant. The first is that the Agriculturists Belief Act did not apply to Bandhu Singh. The other is that the Court below was not; entitled to pass an order by which the period of payment by instalments extended beyond four years.

(3.) The argument upon the first point is based on the provisions of Section 8 of the Act. Section 5 and Section 8 are both in Ch. 2. Section 8 says that no person shall be deemed to be an agriculturist for the purposes of this Chapter unless he was an agriculturist both at the time of the advance of the loan and at the date of the suit. The applicant contends that Bandhu Singh had no existence as an agriculturist in so far as this transaction is concerned because the money was not advanced to. him. This argument has in my opinion no force. We cannot go beyond the plain meaning of the section. Bandhu Singh claims to be an agriculturist for the purposes of Section 5 and therefore all that can be expected of him is that he should establish that he was an agriculturist at the date when the suit was instituted and also that he was an agriculturist at the date when the loan was taken. It cannot be said that he cannot be deemed to have been an agriculturist on this latter date merely because the loan was not advanced to him. In order that Section 5 should apply it is necessary for Bandhu Singh to establish three facts, namely, (1) that the mortgagor was an agriculturist because otherwise the transaction would not amount to a loan within the meaning of the Act according to the definition given in Section 2(10)(a); (2) that he himself was an agriculturist on the date of the loan: and (3) that he himself was an agriculturist at the date of the institution of the suit in which the decree was passed. I find that a specific objection was taken in the Court below that Bandhu Singh was not an agriculturist at the date when the mortgage was executed. There is no finding upon this question and therefore the Court below was not entitled to pass the order which it did pass. Unless it is found that Bandhu Singh was an agriculturist at that date it cannot be said that the Court had jurisdiction to apply Section 5 of the Act to him. For this reason the order of the Court must be set aside and the case returned for decision.