SUDAMA Vs. BRIJ GOPAL DAS

JUDGEMENT

(1.) The appellant was an applicant under the provisions of the U.P. Debt Redemption Act for the amendment of a money decree which had been obtained by the respondent against him. The Courts below have dismissed his application.

(2.) The material facts lie within a narrow compass and may be thus stated. The respondent gave to the appellant a theka of a zamindari and the appellant undertook to pay every year a certain sum of money to the respondent on account of the profits of the zamindari. The appellant failed to make these payments in certain years and then persuaded the respondent to accept a promissory note in lieu of the amounts which he had failed to pay. When the time for bringing a suit on the basis of the promissory note was about to expire, he again persuaded the respondent to refrain from suing and to accept a fresh promissory note. The respondent ultimately had to bring a suit on the basis of the second promissory note and obtained a decree. The application which the appellant filed in the Court below was for the amendment of this decree. The respondent opposed the application on the ground that there was in this case no "loan" as defined in the Debt Redemption Act 13 [XIII] of 1940, and the Courts below have accepted that contention.

(3.) Learned Counsel for the appellant has strenuously relied on a sentence in the judgment of Sulaiman J. in Srrender Prasad V/s. Gajadhar Prasad Sahu . The sentence in question occurs towards the end of column two at page 12 of the Report and reads thus: The third category of any transaction which, in substance, is a loan may for instance possibly include a promise to pay unpaid purchase money or promise to pay a sum of money for some other good consideration, but not a mere acknowledgment of interest duo, unless it also amounts to a renewal of a bond. The Federal Court were in that case concerned with an enactment of the Provincial Legislature of the province of Bihar called The Bihar Money Lenders (Regulation of Transactions) Act. The facts of that case are given in detail in para. 3 of the judgment of Varadachariar J. Briefly put, they may be stated thus. In the year 1911 a predecessor-in-interest of the appellant before the Federal Court had purchased certain property from the respondents predecessor-in-title for Rs. 2900. A sum of Rs. 1900 only was paid in cash and for the balance of Rs. 1000 an account was opened in the vendor's books. Various transactions then followed and advances in cash were made on several occasions. The accounts were on certain occasions signed by the judgment-debtor and acknowledgments were made. Chitthas were also prepared. This went on up to the year 1929. Ultimately a suit was brought for the recovery of the total amount which, according to the creditors, was due and a considerable portion of this amount was on account of interest. It was an these circumstances that the questions with which their Lordships of the Federal Court were concerned were raised. We do not find it possible to accept 1 the contention of the appellant's counsel that the sentence in the judgment of Sulaiman, J. relied upon by him is of any assistance in the case before us. Learned Counsel has next relied on a passage in the judgment of Hamilton J. in the Full Bench case in Pratap Singh V/s. Gulzari Lal 29 A.I.R. 1942 All. 50. The passage in question is at the bottom of page 17 of the Report and the learned Judge in that passage refers to the sentence in the judgment of Sulaiman, J. in the Full Bench case which we have quoted above. The question which was referred to the Full Bench in Pratap Singh V/s. Gulzari Lal 29 A.I.R. 1942 All. 50 was as follows: When an earlier transaction of loan is renewed, is the new transaction itself a loan for the purposes of the U.P. Agriculturists Relief Act 27 [XXVII] of 1934? That is a very different question from the one which arises in the present case. The argument of the learned Counsel for the appellant is, thus, based on two stray sentences, divorced from their context, occurring in one of the judgments of the two cases mentioned above both of which had arisen out of a set of facts which were widely different from the facts of the present case and in both of which the enactments which had to be interpreted were different from the one in the case before us. Our conclusion is that the passages mentioned above do not support the appellant's contention. On the other hand, we have the decisions of two learned single Judges of this Court in Mahomad Shibi Khan V/s. Ish Datt and Chitar Singh V/s. Roshan Singh . We are in agreement with those decisions.