KARAM HUSAIN MUKHTAR Vs. MOHAMMAD KHALIL

JUDGEMENT

(1.) This appeal raises a question of the interpretation of Section 4, U.P. Debt Redemption Act, XII

(13.) of 1940. The decree holder who is the appellant obtained a decree on foot of a mortgage in suit No. 41 of 1938 against the respondent. The property mortgaged consisted of a house and land appurtenant thereto situate within the limits of the Notified Area Committee, Basti. It is noteworthy that on the date of the suit the personal remedy of the creditor was barred by time. The decree-holder put the decree in execution, and the judgment-debtor being an agriculturist within the meaning of the U.P. Debt Redemption Act, the decree- holder made a declaration in accordance with Section 4 of that Act that he would not execute the decree against the land, agricultural produce or person of the judgment debtor. Thereupon the judgment-debtor made an application for amendment of the decree under Section 8 of that Act. The decree-holder opposed the application for amendment filed by the judgment-debtor on the ground that by reason of the declaration made by him in accordance with Section 4 of the Act, the amendment application was not maintainable. The reply of the judgment-debtor to this contention was that the declaration was ineffective and inoperative, inasmuch as the decree did not affect the land, agricultural produce or person of the judgment-debtor. Thus the issue between the parties resolved itself into the question whether Section 4 will apply to the case of a mortgage decree, where the personal remedy against the mortgagor was time-barred on the date of the suit and the mortgaged property was neither land, nor agricultural produce. The learned Civil Judge upheld the contention of the judgment-debtor and directed amendment of the decree in accordance with Section 8, U.P. Debt Redemption Act. It is necessary at this stage to quote the relevant portion of Section 4 of that Act: (1) The provisions of this Act shall not apply to a suit for the recovery of a loan from an agriculturist where the creditor declares in accordance with the provisions of Sub-section 2 that if a decree is passed in his favour either for the whole or part of the claim such decree shall not be executed against the land, agricultural produce or person of such agriculturist. (2) The declaration mentioned in Sub-section (1) shall in the case of a suit pending at the commencement of this Act, be made at any time before the decision of the suit, and in the case of a suit instituted after the commencement of this Act, in the plaint. (3) No decree recoverable from an agriculturist shall be amended under the provisions of this Act if the creditor declares that such decree shall not be executed against the land, agricultural produce or person of such agriculturist.

(2.) While conceding that Section 4, Sub-section (3) applies to every kind of decree against an agriculturist, the learned Civil Judge held that: In every case to which the application of this provision is sought the creditor must have right to proceed against the land, agricultural produce or person of the agriculturist concerned.