GURCHARAN PRASAD Vs. ALI SAJJAD

JUDGEMENT

(1.) This is an application in revision by certain creditors in respect to an order which was passed by the Subordinate Judge of Jaunpur under the U.P. Agriculturists Belief Act (Local Act 27 of 1934) on 10 July 1936. The opposite party are the judgment-debtors of the applicants. They executed a mortgage in 1911, the principal sum secured being Rs. 26,000. The rate of interest was 10 annas per cent, per mensem compoundable annually (equivalent to 7 1/2 per annum). On 29 January 1926, the mortgagees suit upon the mortgage was decreed for Rupees 47,230-11-6. Rs. 19,000 had been realized before the suit, and it appears that after the decree a further sum of Rs. 36,000 was realized. The decree-holders then applied in execution with a view to realize the balance amounting to Rs. 38,000. The opposite party preferred an application purporting to be under Sees. 4 and 30, Agriculturists Belief Act. Their prayer, as contained in paras. 7 and 8 of the application, was as follows: 7. Under Schedule 30, Act 27 of 1934, the interest from 1 January 1930, up to 8 May 1935, should be awarded at the rate mentioned in Schedule 3. 8. Under Section 4 of the aforesaid Act the rate of future interest shall not exceed the rate notified by the Local Government in the Gazette.

(2.) They also prayed for the fixing of instalments presumably under Section 5 of the Act. The operative part of the lower Court's order is in the following terms: I would allow the petition of the judgment-debtor and order that the interest be reduced in accordance with the provisions of Section 30, U.P. Agriculturists Relief Act, and further order that the sum. that may thus be found payable by the judgment-debtor be payable by instalments extending over a space of ten years, the rate of one-tenth of the debt for each year commencing from 31 December 1937, and in default of payment of any two consecutive instalments the amount of those two instalments would become at once realizable by execution of the decree. I would allow no future interest in view of the fact that already a very exorbitant amount has been realized by the creditor from the judgment- debtor.

(3.) The first plea taken before us by learned Counsel for the applicants is that the Court below was in error in directing that in default of payment of two instalments only those two instalments should become realizable. This plea is well founded; but a reference to Section 3(4) of the Act shows that the Judge's order is erroneous in another respect also. Sub-section (4) provides: If the decree provides for payment by instalments, the Court shall direct that, where the number of instalments allowed is four or five and any two instalments are in arrears or where the number allowed is six or more and any three instalments are in arrears, the decree-holder may, notwithstanding the provisions of any law for the time being in force, immediately enforce payment of the whole amount then remaining due under the decree.