BUDHU PANDEY Vs. RAJ BAHADUR LAL

JUDGEMENT

(1.) This is a revision under Section 115, Civil P.C., filed by Budhu Pandey, defendant-applicant. Raj Bahadur Lal, plaintiff-respondent, had filed an application under Section 12, Agriculturists Relief Act, for the redemption of a mortgage dated 13-7-1928. The plaintiff's allegations were that he was not liable to pay anything towards redemption and the mortgage must be deemed to have been satisfied.

(2.) On 15-6-1900, Raj Bahadur Lal's father had executed a simple mortgage for Rs. 6do/- in favour of Budhu Pande and had mortgaged certain zamindari properties. Budhu Pandey filed a suit for sale on the basis of this mortgage and obtained a decree. This was suit No. 193 of 1911. The decree was for Rs. 1,193/2/-. In execution of the decree the whole d the mortgaged property was sold but only Rs. 200 was realized. A personal decree under Order 34, Rule 6, Civil P.C. was passed on 6-8-1921. In the year 1928, Raj Bahadur Lal's mother paid Rs. 300 in cash towards part satisfaction of the decree and for the balance remaining due i.e., Rs. 1378, as he was a minor, his mother as his guardian, executed a usufructuary mortgage on 18-7-1928 and put the mortgagee in possession of five plots measuring about four acres in village Dala. The plaintiff's contention was that by reason of Section 21, Debt Redemption Act, it must be held that nothing was due on 13-7-1928 when the mortgage deed was executed for Rs. 1378. Section 21, Debt Redemption Act provides that where in a suit based on a loan secured by a first mortgage a decree for sale has been executed and the net proceeds of the sale of the mortgaged property are found insufficient to pay the amount due to the plaintiff or to the defendant, as the case may be, no decree shall be passed for the balance due to such plaintiff or defendant, as the case may be, and if any decree for such balance has been passed before the commencement of this Act, it shall be deemed to have been satisfied.

(3.) The other point taken by the plaintiff was that even if Section 21, Debt Redemption Act, is not applicable, the mortgage amount has been satisfied from the usufruct of the property. The Court below has held on this latter point in favour of the plaintiff and has given him a decree for redemption without payment of any sum. The defendant filed this revision which came up for hearing before my brother Braund. He referred the case to a Full Bench for decision of the first point as, in his view, that point raised a question of considerable difficulty. When the matter came up before the Full Bench learned Counsel for the opposite party brought it to the notice of the Full Bench that he did not desire to rely on this point of law and was content to defend this revision on the other point which had been decided in his favour. The Full Bench, therefore, sent the case back for decision by a learned single Judge. The case has now come up before me for decision.