BISHUN SINGH Vs. PALAKDHARI SINGH

JUDGEMENT

(1.) This is a judgment-debtor's appeal from an order of the learned Subordinate Judge of Muzaffarpur allowing in part the judgment-debtor's application. In his application, the judgment-debtor prayed that the Court should convert the decree into a decree for instalments under Section 15, Bihar Money-lenders Act, 1938, and value the judgment-debtor's property under Section 16 of that Act. The learned Subordinate Judge was prepared to grant instalments provided the judgment-debtor paid a sum of Rs. 3000 within a week. The learned Subordinate Judge however did not indicate what the further instalments would be if this sum of Rs. 3000 was paid. With regard to such part of the application as was concerned with Section 16, Bihar Money, lenders Act, 1938, the learned Subordinate Judge was of opinion that this Section was repugnant to the general law and accordingly could not be enforced. The learned Subordinate Judge was in fact following a decision of this Court, namely Vishwanath Narayan Singh V/s. Harihar Gir A.I.R (1939) . Pat. 90.

(2.) The judgment-debtor failed to pay the sum of Rs. 3000 within the stipulated time, and accordingly the whole of the property was put up for sale and was purchased in the main by third parties though a small portion was purchased by the decree, holders. Against the order of the learned Subordinate Judge dismissing the application in so far as it was concerned with Section 16, Bihar Money-lenders Act, 1938, the judgment-debtor has appealed to this Court. The only point for consideration is whether or not Section 16, Bihar Money-lenders (Regulation of Transactions) Act, 1939, has any application to the case. Section 16, Bihar Money- lenders Act, 1938, is in these terms: (1) When an application is made for the execution of a deoree passed in respect of a loan or the interest on a loan by the sale of the judgment- debtor's property, the Court executing the decree shall, notwithstanding anything to the contrary contained in any other law or in anything having the force of law, hear the parties to the decree and estimate the value of such property and of that portion of such property the proceeds of the sale of which it considers will be sufficient to satisfy the decree : Provided that the Court may order the whole property of the judgment- debtor to be sold if it is satisfied that by reason of the nature of such property or any other special circumstances such property cannot reasonably and conveniently be sold in part. (2) Any person aggrieved by an order passed under Sub-section (1) may appeal to the Court to which appeals from the Court executing the decree ordinarily lie.

(3.) Section 17, which followed, directed that only so much property should be included in the proclamation of the intended sale as the Court considered the proceeds to be sufficient to satisfy the decree. The application, as it originally stood, was under Section 16 of the 1938 Act and was rejected. While this appeal was pending in this Court, the Amending Act of 1939 was passed, and Secs.16 and 17 were repealed and were replaced by Secs.13 and 14 of the Amending Act. Section 13(1) of the Amending Act in terms applies to applications made before or after the commencement of the Act, and it has been held by the Federal Court in Shyamakant Lal V/s. Rambhajan Singh that Section 13 of the Amending Act of 1939 is retrospective in the sense that it applies to proceedings pending at the time when the Act came into force.