MUNNEY KHAN Vs. MOHAMMAD BAKHSH

JUDGEMENT

(1.) This is a defendants second appeal against an appellate order of the District Judge of Sitapur by which a decree passed by the Munsif, Sitapur, in a suit under Section 33, Agriculturists Relief Act, was modified.

(2.) The material facts lie within a short compass : On 19 April 1936, the present respondent, Mohammad Bakhsh, executed a deed of usufructuary mortgage in favour of Munney Khan and Abdul Rauf Khan. As it was a usufructuary mortgage, no rate of interest was specified in the deed, and the profits of the land mortgaged were to be appropriated by the mortgagees in lieu of interest. The mortgage was given for a period of five years. The suit which has given rise to this appeal was instituted by Mohammad Bakhsh in the Court of the Munsif, Sitapur, under Section 83, Agriculturists Relief Act, for an account of the money due under the mortgage. A number of pleas were raised. One of the contentions raised on behalf of the plaintiff was that inasmuch as the mortgagees were creditors within the meaning of that expression as defined in Section 2 (7), Agriculturists Relief Act, and they had failed to maintain accounts or to furnish the debtor annually with a copy of hisaccounts, the defendants should not be allowed any interest in accounting between them and the mortgagor, and further that they should not be allowed any costs of the suit. The Munsif on taking accounts between the parties found that the amount due to the mortgagees was Rs. 425 principal and ps. 4-9-7 on account of interest. He allowed the mortgagees their costs of the suit. An appeal was preferred before the District Judge of Sitapur. He, modified the decree of the trial Court and reduced the amount to Rs. 260-13-9 only. He disagreed with the view of the Munsif that the penalties contemplated by Section 34 of the Act Could not be imposed on the mortgagees even though they were "creditors". He took the view that the creditor who had failed to maintain an account was liable to the penalties mentioned in Section 34, even in a suit brought by a mortgagor under Section 33, Agriculturists Relief Act, and inasmuch as no accounts had been maintained and annual copies of the mortgage accounts were not furnished to the debtor he disallowed the mortgagees costs. Dissatisfied with this decision, the present appeal was filed by the defendants.

(3.) Only two points were pressed at the hearing. (1) That the Court below was wrong in holding that appellant 1 was proved to be a creditor, and (2) that the suit out of which the appeal has arisen not being one against an agriculturist, Section 34 had no application to such a case.