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Allahabad High Court · body

1944 DIGILAW 188 (ALL)

Rameshur Dayal v. Amir Ali

1944-10-11

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JUDGMENT Ghulam Hasan, J. - This is a decree holder's application from an order dated the 19th April, 1941, amending a decree u/s 8 of the U.P. Debt Redemption Act (XIII of 1940). 2. It appears that the decree-holder gave a declaration u/s 4 Sub-section (3) of the Act, Sub-section (3) lays down-- "No decree recoverable from an agriculturist shall be amended under the provisions of this Act if the creditor declares that such decree shall not be executed against the land, agricultural produce or person of such agriculturist". 3. The third proviso to this Sub-section, however says that no declaration shall be made under Sub-section (3) where the creditor has already applied for execution against the land, agricultural produce or person of such agriculturist. In the present case, the decree-holder had, in 1936, sought to execute the decree by the arrest of the judgment-debtor. If this proviso applies, there can be no doubt that the declaration given by the decree-holder cannot have the effect attributed to it under Sub-section (3) namely, that the decree shall not be amended under the provisions of the Act. 4. It has been contended on behalf of the decree-holder that the application by a creditor which is contemplated under proviso 3 to Sub-section (3) must be one which is made after and not before the passing of the U.P. Debt Redemption Act. Reliance is placed on a single Judge decision of the Allahabad High Court in Babu Nandan Lal v. Parsottam Sahu 1942 O.A. (Su) 148 : A.W.R. (H.C.) 84 : O.W.N. 122. This case was overrued by a Full Bench of that Court in a case reported in Mohd. Abdul Razzaq v. Parvati Devi 1942 A.W.R. (H.C.) 319 : A.L.J. 534. It was held by the Full Bench that a decree-holder who had before the passing of the U.P. Debt Redemption Act applied for the execution of his decree against the land, agricultural produce or person of the agriculturist judgment-debtor, is barred from making the declaration contemplated by Sub-section (3) of Section 4 of the Act. The words "has already applied for execution" in the third proviso to Sub-section (3) of Section 4 of the Act have reference not only to applications for execution made after the passing of the Act but also to applications for execution made before the Act came into force. The words "has already applied for execution" in the third proviso to Sub-section (3) of Section 4 of the Act have reference not only to applications for execution made after the passing of the Act but also to applications for execution made before the Act came into force. This view was followed by a single Judge of this Court in Qaisar Mirza v. Ajodhia Prasad 1943 O.A. 82 : O.W.N. 133. These decisions in my opinion are conclusive on the question. I hold, therefore, that the order passed by the lower Court is correct. 5. The revision application is dismissed with costs.