Sarwan Chaudhury and Others vs Chanarpat Thakur and Others

Dhavle, J.—This is an appeal by the decree-holder. It arises out of an application made by the judgment-debtor u/s 15, Bihar Money-lenders (Regulation of Transactions) Act, 1939. The decree was obtained on a mortgage of the judgment-debtor''s kasht land with an area of 11 kathas odd. Under Clause (1)(i) of Section 15 of the Act the Court executing the decree

shall exempt from sale one acre of the land comprised in the holding or holdings of the judgment-debtors, if the area of such land does not exceed three acres.

In the lower Courts the decree-holder sought to defeat the judgment-debtor''s objection to the sale of his 11 kathas odd by urging that he was not an agricultural debtor, and this contention was based on the fact that the judgment-debtor admittedly had some zerait land with an area of 5� or 7� kathas, on which stands his house along with his bari. The lower Courts came to the conclusion that as the judgment-debtor received no naqdi or other income from his zerait and as the evidence showed that he earned his livelihood by cultivation and not, as alleged by the decree-holder, by service, the judgment-debtor was an agricultural debtor and as such entitled to the benefit of Section 15 as claimed by him (actually there was a body of judgment-debtors, but I have referred to them in the singular as the judgment-debtor).

The learned advocate for the appellant has not assailed the view of the lower Courts that the judgment-debtor is an agricultural debtor, but he has argued that having regard to the object of the Act, Section 15 should be taken to exempt from execution sales, land in the possession of the judgment-debtor and not land which, as in the present case, has been parted with by him to a usufructuary mortgagee (sudbharnadar). But the section does not speak of land in the possession of the judgment-debtor. What it does is to exempt from sale "one acre of the land comprised in the holding."

Mr. Shahi has suggested that the policy of the Act was to save a minimum quantity of land for the livelihood of the agricultural debtor and that this object would be defeated and a prior mortgagee left without a practical remedy if holdings of one acre or less which have been already given away in sudbharna by agricultural debtors are exempted.

The sudbharna in the present case is admitted, and I understand it was subsequent to the mortgage on which the appellant obtained his decree. It is quite clear that if the holding had not been given away in sudbharna, the appellant could not have been allowed u/s 15 to bring the holding to sale. It is also clear that the acts of the debtor after the execution of the mortgage in favour of the appellant cannot, without the appellant''s consent, affect his rights, and Mr. Shahi has not been able to suggest why the appellant''s right should be enlarged merely because the debtor chose after the appellant''s mortgage to give his small holding in sudbharna. After all is said and done, the sudbharna cannot have been without consideration, and if the debtor had a right to execute the sudbharna, it has not been suggested on what principle the exercise of that right should enlarge the rights of the prior mortgagee.

I am accordingly unable to accept the contention that the holding should be brought to sale in execution of the appellant''s decree because it is in the possession not of the debtor but of his sudbharnadar.

The appeal fails and is dismissed with costs. Hearing fee one gold mohur.