MT RAZIA BEGAM Vs. KRISHNADEONARAYAN MAHTHA

JUDGEMENT

(1.) This is a judgment debtor's appeal from an order of the learned Subordinate Judge of Muzaffarpur allowing in part only an application of the judgment-debtor under Section 47, Civil P.C. and Secs.15, 16 and 17, Bihar Money-lenders Act of 1938. In the year 1921, the judgment-debtor executed a mortgage bond in favour of the decree-holders for Rs. 62,000 and in 1928, a decree was passed in favour of the decree-holders upon this bond. There appears to be a Sum of Rs. 17,000 or so still due from the judgment-debtor to the decree-holders. A large number of properties comprised in the bond have already been sold, and there is now left a house and compound which is said to be of a value far exceeding Rs. 17,000. The decree-holders wished to put the whole of this property, namely, the house and compound to sale, but the judgment-debtor objected.

(2.) In the application which gives rise to this litigation, the judgment-debtor claimed that a fresh sale proclamation should be issued by reason of the fact that the account given in the sale proclamation was incorrect. The parties appear to have agreed that the account given in the sale proclamation was incorrect, and the learned Subordinate Judge accordingly held that a fresh sale proclamation would be necessary. No point arises upon this aspect of the case. The applicant also prayed that only such portion of the compound attached to the house which had been previously valued at Rs. 29,701-14-0 by the Court should be ordered to be sold as it was sufficient to satisfy the decretal dues.

(3.) This prayer was made in consequence of Secs.16 and 17, Bihar Money- lenders Act, 1938. The learned Subordinate Judge came to the conclusion that these Secs.of the Bihar Money-lenders Act had no application to mortgage decrees. In his view to hold that these Secs.applied to mortgage- decrees would be to interfere with the integrity of the mortgage. The Amending Act, namely Bihar Money-lenders Act, 1939 (Act 7 of 1939) has been passed, and Secs.16 and 17 of the old Act are now incorporated in Secs.13 and 14, Amending Act. There can be no doubt that by the terms of the Amending Act that Act applies to this case.