Mt. Razia Begam vs Krishnadeonarayan Mahtha and Others

Harries, C.J.—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 u/s 47, Civil P.C. and Sections 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.

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.

This prayer was made in consequence of Sections 16 and 17, Bihar Money-lenders Act, 1938.

The learned Subordinate Judge came to the conclusion that these Sections of the Bihar Money-lenders Act had no application to mortgage decrees. In his view to hold that these Sections 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 Sections 16 and 17 of the old Act are now incorporated in Sections 13 and 14, Amending Act. There can be no doubt that by the terms of the Amending Act that Act applies to this case.

It has been argued by Mr. Yunus on behalf of the judgment-debtor-appellant that the plain words of Sections 13 and 14 make it clear that they apply to mortgage decrees. Mr. Bose on behalf of the respondents does not contend otherwise, and in my view it is clear that these Sections do apply to mortgage decrees and sales thereunder. That being so, the learned Subordinate Judge was wrong in holding that the judgment-debtor had no right to ask the Court to sell only a portion of the property to satisfy the decretal dues. The result therefore is that this appeal must be allowed and the order" of the'' learned Subordinate Judge in so far as it relates to the sale of the property must be set aside and the case remanded to the Court below to be disposed of according to law. The Court below will take into consideration Sections 13 and 14, Bihar Money-lenders Act, 1939, and will act accordingly. The appellant must have his costs in this Court and in the Court below

Fazl Ali, J.

I agree