HARDAS S/O. RAJAU SATNAMI Vs. RAMGULJARILAL

JUDGEMENT

(1.) THIS reference is occasioned by a difficulty which the Relief of Indebtedness Act raises. It is a difficulty envisaged in several decisions of this Court. Dau Balwantsingh v. Bindabai A.I.R. 1942 Nag. 88 ; Bapurao v. Bulakidas A.I.R. 3944 Nag. 225 and Radhakishandas v. Dwarkadas are samples. A similar difficulty was felt under the Debt Conciliation Act in Premlal Mannulal Parwar v. Jiwan (37) 20 N.L.J. 25 and in Chanaram v. Balbhadrasai A.I.R. 1938 Nag. 42 . These latter cases are referred to in Dau Balwantsingh v. Bindabai A.I.R. 1942 Nag. 88 The question at this stage is one of jurisdictions and the point is whether the civil Court has jurisdiction to proceed with the present case. The problem is this.

(2.) THE Relief of Indebtedness Act was passed, as its preamble shows, "to relieve agriculturists from indebtedness." It was not intended to enable non-agriculturists, and those whose incomes were above a certain level, to escape their liabilities. This at once raises the question, what is to happen when two persons, one an agriculturist and the other not, are bound by a joint liability? Can the right of the agriculturist to obtain a scaling down of his debt under the Act relieve the other of his responsibility? Sen J. who made the reference, felt unable to reconcile the rule which makes a mortgage indivisible with the earlier rulings of this Court. Our real problem centres round that.

(3.) ON 5-5-1927, the three brothers Manglu, Bisambhar and Hardas executed a simple mortgage in favour of the plaintiffs for Rs. 5650. The property mortgaged was a 10 as. 8 pies share of Mouza Deoda. On 24-4-1939, the mortgagees sued on their mortgage. They impleaded as defendants all the persons shown as applicants in the tree, that is to say, all except Rajan, Bisambhar and Kambal who were dead. The first hearing was on 7-8-1939. Behari (defendant 12) was absent as were three others, and the case proceeded ex parte against them.