ZIAUL HASAN Vs. MTRUQUYIA BEGUM

JUDGEMENT

(1.) This is a Judgment-debtors appeal. On 8-2-1930, the appellants executed a mortgage for Rs. 840 in favour of the plaintiff. On the basis of this mortgage the plaintiff filed a suit for sale of the mortgaged property, which consisted of a sitting room and a shop, in the Court of the First Munsif of Bulandshahr (orinigal Suit No. 4 of 1939). A preliminary decree was passed on 15-1-1940. The final decree for sale was passed on 5-9-1940, for Rs. 2008-2-0. This decree was put into execution and the property included in the mortgage was sold for Rs. 1200.

(2.) The mortgage decree was not satisfied in full and the mortgagee filed an application on 8-1-1942, for a decree under Order 34, Rule 6, Civil P.C., The judgment-debtors filed an objection that they were agriculturists and were entitled to the benefit of Section 21, U.P., Debt Redemption Act (13 [xiii] of 1940) which provided that no decree under Order 34, Rule 6, Civil P.C., could be passed against them.

(3.) On 8-10-1940, an application for execution of the decree made under Order 84, Rule 5, Civil P.C., had been filed by the decree-holder. In the course of execution proceedings the decree-holder had made a declaration under Section 4, Debt Redemption Act on 27-2-1941. The declaration was in these terms: I, the decree-holder, Mt. Buqaya Begam, hereby declare under Sub- section (3) of Section 4 of Act 13 [XIII] or 1940 that the decree under execution shall not be executed against land, agricultural produce or person of the judgment debtor." The decree-holder relied on this declaration and urged that by reason of the declaration made by her on 27-2-1941, Section 21, Debt Redemption Act was no longer applicable and that she was entitled to a decree under Order 34, Rule 6, Civil P.C.