BISHESHAR Vs. GAYA BUX SINGH

JUDGEMENT

(1.) This is a reference under Section 113, Civil P.C., by a Munsif of Allahabad. A mortgage decree was passed against nine persons. The judgment-debtors subsequently applied under Section 6, U.P. Temporary Regulation of execution Act (Local Act 24 of 1934) for relief under Section 8 of the Act. According to the learned Munsif's statement of the ease, only two of the nine judgment-debtors are cultivators within the meaning of the Act. The Munsif has referred the following question to this Court: Where Borne, but not all, the judgment-debtors are cultivators within the meaning of the Act, can those judgment-debtors alone, who are cultivators, reap the benefit or all of them, and in the former case whether the benefit will be granted so far as their share of liability alone is concerned?

(2.) The Munsif's own opinion is in the affirmative. Section 6 of Act 24 of 1934 reads as follows: Any person against whom a decree to which this Act applies has been passed or his successor or representative, may, within a period of one year following the commencement of this Act, 1 apply to the Court passing such decree or, if the j decree is being executed, the Court in which execution proceedings are pending, to give him the benefit of the provisions of this Act, provided that no person shall make such application unless he is a cultivator on the day on which this Act came into force and is a cultivator on the date of the application.

(3.) The Act is silent on the point which has been referred to us, but learned Counsel for the decree-holder pleads that in such a casa none of the judgment- debtors is entitled to, the benefit of the Act. He points out that in the U.P. Agriculturists Belief Act (Local Act 27 of 1934) there is a proviso to Section 2 to the effect that if a non-agriculturist joins with an agriculturist in any transaction of loan, save for the purpose of adding his name as security, the agriculturist shall not be considered as such for the purpose of that transaction; and he argues that by analogy, the same principle should be applied in cases arising out of Act 24 of 1934. From the grammatical construction of the above-mentioned proviso, it might well be argued that it is doubtful whether it was intended to apply to loans taken after the passing of that Act; and in any case we think it would be unsafe to apply the analogy. There is however one difficulty which we have noticed. Section 6 of Act 24 of 1934 provides that any person against whom a decree to which this Act applies has been passed is competent to apply for relief but Section 4(1) lays down that the Act shall not apply to any decree passed against, any person other than a cultivator. From this it may be argued and it was so argued after we had pointed this out to learned Counsel for the decree-holder that since is dear that the decree in the present case was, quoad seven of the judgment-debtors, a decree against persons other than cultivators, it must be held that the Act is totally inapplicable to this transaction. The contention is not without some force, but it is equally clear that, quoad two of the judgment- debtors, the decree in question was also a decree against persons who are cultivators. If the Legislature had intended that when, some of the judgment debtors in a proceeding under Act 24 of 1934 are cultivators within the meaning of the Act and others are not, the benefit of the Act should be denied to all, it may be presumed, having regard to the scheme and purpose of the Act that a provision to the above effect would have been incorporated therein.