Badri Mahto vs Lochan Sah

Harries, C.J.—This is a second appeal from concurrent orders of the Courts below dismissing a judgment-debtor''s application u/s 47, Civil P.C., and Section 15, Bihar Money-lenders Act. In this application u/s 47, Civil P.C., and Section 15, Bihar Money lenders Act, the judgment-debtor took all possible objections that could be raised. He alleged that the decree under execution had been fraudulently obtained by wrongly describing the judgment-debtor as a minor whereas he was a major and also by the suppression of summonses. He further alleged in the execution case that all the processes had been suppressed and that the proclamation of sale had also been suppressed. It was further alleged that the judgment-debtor had been described as being under the guardianship of his mother, whereas in fact his proper guardian was a pleader guardian appointed earlier. It was further alleged that the appellant was an agriculturist, and as he had less than an acre of land in his possession, such was not liable to be sold u/s 15, Bihar Money-lenders Act. It was further alleged that his house being that of an agriculturist could not be sold u/s 60, Civil P.C., and Section 177A, Bihar Tenancy Act. Both the Courts below dealt with the various objections and dismissed them.

In this second appeal Mr. Nawal Kishore Prasad II has taken an entirely new point, though every conceivable point had been taken in the Courts below to hold up this execution. It is now contended for the first time that no valuation of the property was ever made as required by Sections 13 and 14, Bihar Money-lenders Act. It is said that these sections were in force before the sale took place, and, therefore, as no valuation under their provisions had been made the Court had no jurisdiction whatsoever to sell the property.

It is clear from the application made to the learned Munslf that no such point was made; but there is a reference to it in the grounds of appeal to the learned District Judge. However, it is clear from the judgment of the learned District Judge that the point was never taken before him and it is not dealt with. The position therefore is that neither of the Courts below was asked to deal with this matter. That being so, this Court cannot consider this new point. It has been laid down time and again that this Court in second appeal cannot entertain an entirely new point if for its decision fresh facts have to be found. In the present case before we can decide the question, we should have to call for a finding as to what proceedings did take place in the Court below before the sale actually took place. Some value must have been given in the sale proclamation, and even that is not before us. It may be that the property was valued under the provisions of Order 21, Rule 66, Civil P.C., but again that information is not before us. For aught we know this property may well have been valued under Sections 13 and 14, Bihar Money-lenders Act. Before we could decide this question the facts would have to be gone into afresh. That being so, I do not think that the appellant should be allowed to raise this question in second appeal for the first time.

It was further argued that the decree sought to be executed was a nullity, because in it the appellant is described as a minor, whereas he was a major. The Courts have actually found that he was a minor; but in any event the Courts would have to execute the decree as they found it. However, having regard to the finding of fact, this point was not pressed.

The appellant also sought to challenge this execution on the ground that the final decree which was being executed was in some way void. The argument was that in the final decree the appellant was shown as a minor under the guardianship of Mt. Ketki, his mother, whereas in the preliminary decree he was shown as being under the guardianship of a pleader guardian. It was argued that as there was nothing to show that the pleader guardian had been discharged, Mt. Ketki had no right to act as guardian, and, therefore, the minor had not been properly represented when the final decree was passed. In my view it was for the appellant to show that he had not been properly represented and not for the decree-holder to show that the pleader guardian had been discharged and the mother appointed a guardian. The presumption would be that all things were done properly, and the Courts below were perfectly right in assuming that at the time the final decree was passed the minor was properly represented.

The last point taken by the appellant was that the Courts below were wrong in not exempting the property from sale under the provisions of Section 15, Bihar Money-lenders Act. Section 15 is in these terms:

(1) Notwithstanding anything to the contrary contained in any other law or in anything having the force of law, where a decree is passed before or after the commencement of this Act for the payment by an agricultural debtor of the amount due on any loan advanced to him by a money-lender, the Court executing the decree�

(i) shall exempt from sale one acre of the land comprised in the holding or holdings of the judgment-debtor, if the area of such land does not exceed three acres; and

(ii) shall exempt one acre, and may exempt any further portion of such land if the area of such land exceeds three acres provided that the total area exempted from the sale does not exceed one-third of the total area of such land.

Sub-section (2) of the section defines "agricultural debtor."

For the purposes of this section "agricultural debtor" means a raiyat the total area of whose holding or holdings does not exceed such area as the Provincial Government may fix for the district or part of the district in which such holding or holdings are situate.

The contention of the appellant in the Courts below was that he was an agriculturist and that as his land did not exceed one acre it should be exempted from sale. The Courts below, however, came to the conclusion that the appellant was not an agricultural debtor within the meaning of that term as used in the statute. The appellant did own certain plots of land, but before the sale took place some of these plots had been sold and others had been given in sudhbharna. In short, at the time of these proceedings the appellant was not in cultivating possession or indeed in any kind of possession of any plot of land. With regard to the lands, which he had sold by sale-deeds, obviously he could not be regarded as an agriculturist. It has, however, been urged that though he has parted with his other lands by means of his sudhbharna bonds he was still an agriculturist and a raiyat.

The purpose of Section 15, Bihar Money-lenders Act, appears to be that an agriculturist should not be deprived of the whole of his land and that a small part should be exempted so that the debtor would be able by cultivation to exist. What is exempted is land and not rights in the nature of purely mortgagor''s rights. In the present case the appellant is not in possession of the lands given in sudhbharna and is not entitled to possession of such lands. All he has is a right to redeem, and that is a mere equity of redemption. If an acre of land was exempted, he would be little better off, because he could not cultivate the same, and it would still remain in the possession of the mortgagee. In my view, it cannot be said that a person who owns a mere equity of redemption and is not in possession or entitled to possession can be described as an agricultural debtor within the meaning of this section. It may be that different considerations would apply to the case of a mortgagor under a simple mortgage. That question will have to be considered when it arises. However, in the present case I am clear that the appellant could not be described as an agricultural debtor within the meaning of this section. Merely exempting the equity of redemption of an acre out of an area mortgaged could never have been the intention of the Legislature. What was intended was exemption of land in the possession of the debtor which would give the debtor a means of subsistence. In my view, the Courts below were right in holding that Section 15, Bihar Moneylenders Act, did not apply to the present case.

No further point was taken, and for the reasons which I have given, I see no ground for interfering with the orders passed by the Courts below, and I would, therefore, dismiss this appeal with costs.

Manohar Lall, J.

I agree.