Lachhm1 Narain v. Mst. Durga — 1945 DIGILAW 157 (ALL)

JUDGMENT Madeley and Kaul, JJ. - This is a judgment-debtor's application u/s 113 C. P. C. in a mortgage suit. 2. The facts of the case are that on the 5th October, 1930, a simple mortgage deed, Exh. A-2, was executed by the applicants in favour of opposite-party Mst. Durga for Rs. 12,500 with interest - at 10 per cent per' annum. On the 1st October, 1937, Mst. Durga brought a suit on the foot of this mortgage for the recovery of Rs. 24,345 principal and interest and obtained a preliminary decree for sale on the 23rd December, 1940. In the meantime, on the 5th April, 1937, the present applicants had filed an application u/s 33 of the Agriculturists' Relief Act, but at that time they made no deposit of money. These two cases were heard by the same Judge, and on the 25th March, 1939, the present applicants, having calculated the amount of interest permissible under the Agriculturists' Relief Act, deposited Rs. 19,425. Notice was issued to Mst. Durga to withdraw this amount which she did on the 19th July, 1939. It was, however, found by en the Court that the mortgagors were not entitled to the benefit of the Agriculturists' Relief Act (since they were not agriculturists at the time of taking the loan) and the application u/s 33 was dismissed. A preliminary decree for sale was then passed on the 23rd December, 1940, and the judgment-debtors were ordered to pay into Court on or before the 23rd day of June, 1941, the sum of Rs. 13,106-12-0. After this decree had been passed the Debt Redemption Act came into force on the 13th January, 1941, and the mortgagors then applied for amendment of the decree u/s 8 of that Act. On the 21st March, 1941, the mortgagee filed a reply. In this she denied that the mortgagors were agriculturists. She said, however, that if the mortgagors were , agriculturists, the decree should be amended under Sections 151 and 152, read with Section 4 (4) of the Debt Redemption Act, and it should be treated as a simple money decree. On the 21st March, 1941, the mortgagee filed a reply. In this she denied that the mortgagors were agriculturists. She said, however, that if the mortgagors were , agriculturists, the decree should be amended under Sections 151 and 152, read with Section 4 (4) of the Debt Redemption Act, and it should be treated as a simple money decree. At the same time she gave declaration provided for in Section 4 (3) of the Debt Redemption Act 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. Section 4 (4) provides that where such a declaration has been made no order shall be male for the execution of the decree against the land, agricultural produce or person of the agriculturist in respect of whom the declaration was made or his heir or successor, and the Court shall record a direction to this effect in the decree. 4. The Court found against the decree- holder on the question whether the mortgagors were agriculturists and this matter is now beyond dispute. The lower Court, however, refused to amend the decree in accordance with the prayer of the mortgagors because of. the declaration made by the mortgagee. This is, of course, in accordance with the mandatory provisions - of the Act itself. It also, recorded the direction provided for in Section 4 (4) of the Debt .Redemption Act in the decree. It then proceeded to amend the decree so as to turn it into a simple money decree u/s 151 of the Civil Procedure Code. The ground for this amendment is that the direction which is to be recorded in the decree by virtue of section 4 (4) of the Debt Redemption Act is inconsistent with a decree for sale of agricultural property, and, as the property mortgaged was exclusively agricultural, there is on account of the direction u/s 4 (4) nothing left to be sold. 5. S. 151 of the Code of C. P. provides. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to mike such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 6. 5. S. 151 of the Code of C. P. provides. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to mike such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 6. No power of consequential amendment of the decree in pursuance of the direction recorded therein u/s 4 (4) of the Debt Redemption Act is provided by that Act and we therefore think that the opposite party's learned Counsel cannot take any advantage from the Debt Redemption Act. The amendment, if made, must be made u/s 151, C. P. C. alone and we have therefore to see if it is required for the ends of justice or to prevent an abuse of the process of the Court. 7. The Debt Redemption Act was brought into force for the purpose of giving some further relief to agriculturists in respect to their indebtedness. It was therefore open to the judgment-debtors in the present case to avail 'themselves of its provisions for the purpose for which it was passed. We are not here concerned with the relative wealth of the parties but with their legal rights. It cannot possibly be said that it was an abuse of the process of the Court for the mortgagors to file an application for the amendment of the decree u/s 8 of the Act. The object of the mortagagee in filing her reply to the application is clear. She wished to take advantage of the provisions of the Act entitling her to the whole amount of the decree provided she was ready to execute it only against non-agricultural property. Since the security in the present case is agricultural property, she could not do this without giving up her security. According to the judgment of the lower Court the object of the decree- holder was to evade the provisions of the Debt Redemption Act. After going into the question of local rates, it says. The result is that the entire zemindari property is absolutely protected u/s 17 (1) (a) and could not be sold. According to the judgment of the lower Court the object of the decree- holder was to evade the provisions of the Debt Redemption Act. After going into the question of local rates, it says. The result is that the entire zemindari property is absolutely protected u/s 17 (1) (a) and could not be sold. We cannot blame the decree- holder for not availing herself of the second proviso to the section for taking a self liquidating usufructuary mortgage for 20 years, when she can very easily realise the decretal amount in no time, taking into consideration the fact that the judgment- debtors of their own accord and under no compulsion minaged to pay Rs. 19,425 in a lump sum on 25th March, 1939. 8. We have no doubt that the decree- holder is entitled to take advantage which the law gives her, and, if within the provisions of the Dabt Redemption Act she can retain her right to recover the whole amount specified in her preliminary decree, there is no evasion of those provisions. But it can scarcely be said that the ends of justice demand, or that it is necessary in order to prevent an abuse of the process of the Court, that her preliminary decree for sale should be altered into a simple money decree a complete change in the nature of the decree to enable her to attain her ends. 9. In fact the lower Court as well as the opposite party's learned counsel have not argued the case on these lines. Their argument is that the cumulative effect of section 4 (4), section 17 (1) (a) and section 151 entitled the lower court to alter the decree into a simple money decree because (1) the direction in section 4 (4) renders the decree in consistent and (2) the provisions of section 17(1) (a) prohibits the sale of the properly, and there fore it cannot be incumbent upon the decree- holder to obtain a final decree for sale when the sale can never take place. 10. As to (1) section 151 has nothing to do with logic or consistency. It relates to the ends of justice and the prevention of abuses of the process of the Court which are very different things. 11. 10. As to (1) section 151 has nothing to do with logic or consistency. It relates to the ends of justice and the prevention of abuses of the process of the Court which are very different things. 11. As to (2), it appears to us that the implication of the argument used by the lower Court is that since the provisions of a preliminary decree for sale in the form pro- vided by the Civil Procedure are not consistent with section 17 (1) (a) the decree- holder can get the preliminary decree for sale converted into a simple money decree, wherever it suits him, by virtue of section 17 (1) (a) read with section 151 C. P. C. Section 17 (1) (a) was enacted to protect the interests of agriculturists, and the object of the Act would be defeated if the decree- holder were enabled to evade it by resort to section 151, C. P. C. 12. In our opinion there is no force in the argument that the united force of these three sections necessitates the amendment of the decree so as to make it a simple money decree. The inconsistency, if any, was introduced into the preliminary decree at the instance of the decree-holder herself. No injustice can therefore be done to her by allowing it to remain there nor can she be allowed to evade the provisions of section 17 (1) (a) by having resort to section )51 of the Code of Civil Procedure. 13. We therefore set aside the decree of the lower Court. In its place the preliminary decree for sale with the direction u/s 4 (4) of the Debt Redemption Act is substituted. The applicants will get their costs in this Court and of the leading miscellaneous case No. 2 of 1941 in the lower Court.