AZIZ MIRZA Vs. MTTAYABBA BEGUM

JUDGEMENT

(1.) This is a second appeal on behalf of the judgment-debtor, Aziz Mirza, from the judgment and decree of the District Judge of Agra confirming the judgment and decree of the Munsif of Agra by which an application made by the appellant to the Collector, to whom the execution of a mortgage decree obtained by the respondent, Smt. Tayyaba Begam, against the appellant had been transferred under Section 68, Civil P.C., praying that the benefit of Secs.16 and 17, U.P. Debt Redemption Act, 1940 (U. P. Act XIII

(13.) of 1940) be given to him, has been directed by the Munsif to be recalled from the Court of the Collector to his own Court for disposal.

(2.) A mortgage was executed by the appellant in favour of the respondent on 7th November, 1980. On 20 February 1933, the respondent obtained a decree against the appellant on the foot of that mortgage. A final decree was passed on 9 December 1933. Some time after that the appellant became insolvent and the Official Receiver was put in charge of all his property on 27 May 1937. On 7th May 1942, the appellant made an application to the Court for the amendment of the decree under Section 8, Debt Redemption Act. This application was, however, dismissed on 7 July 1942, on the ground that all the property of the judgment- debtor having vested in the Official Receiver he was not an agriculturist and was therefore not entitled to the benefit of the Debt Redemption Act. Thereafter the execution of the decree was transferred to the Collector under Section 68, Civil P.C. The execution proceedings were put in charge of an Assistant Collector and the appellant made an application before him praying that the benefit of Sections 16 and 17, Debt Redemption Act be given to him. This application was dismissed by the Assistant Collector. There was, however, an appeal to the Commissioner which was also dismissed. Thereafter, there was an appeal to the Board of Revenue which however, allowed the appeal. The view taken by the Board of Revenue was that the Assistant Collector had no power to dispose of the application. It accordingly restored the application and Bent it to the Collector for disposal. In the meanwhile on 18 August 1943, the decree-holder made an application to the Court of the Munsif by whom the original decree had been passed praying that the appellants application under Secs.16 and 17, Debt Redemption Act pending before the Collector be recalled and disposed of by it according to law. The Munsif allowed the application by an order dated 26th November 1943, and directed that the papers be recalled from the Collector and fixed a date for the determination of the question whether the appellant was or was not entitled to the benefit of Secs.16 and 17, Debt Redemption Act. The appellant went up in appeal to the District Judge who as we have seen, dismissed the appeal. Ha has now come up to the High Court in second appeal.