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1946 DIGILAW 194 (ALL)

Mst. Barko v. Habiba Khanam

1946-08-08

KLDWAI

body1946
JUDGMENT Kidwai, J. - On the 9th Angst, 1939, Mst. Barko, applicant, obtained a preliminary decree for sale on the basis of a Mortgage for Rs. 300 garment the two opposite-parties who are husband, and wife. On the 19th October, 1940, the decree was made final. On the 17th July, 1941, the two opposite-parties applied u/s 8 of the U.P. Debt Redemption Act claiming to be "workmen" within the meaning of the said Act, The allegation was that Zamin Ali, judgment debtor No. 2, was an employee in the N.W. Railway Press and the other judgment-debtor, Ms:. Habiba Khanam, was his wife dependent upon him. 2. In reply the decree-holder pleaded that although Zamin Ali, was an employee of the N.W. Railway Press at Lahore on a Salary of Rs. 40 per month, he was not a "workman", and that Mst. Habiba Khanam was in no case a "workman." She further pleaded that the mortgaged property belonged solely to Mst. Habiba Khanam and that she declared that she would not realize the decretal amount from Zamin Ali. 3. The Munsif, North Lucknow, before whom this application for amendment of the decree came up held that Zamin Ali was a workman within the meaning of the U.P. Debt Redemption Act but that Mst. Habiba was not. He, therefore, proceeded to apportion the liability between the two judgment-debtors. 4. The decree-holder is not satisfied with this order and has come up in revision u/s 115 of the Code of Civil Procedure. Her Learned Counsel has attacked the judgment of the Munsif on three grounds, Firstly, he argues, that the transaction is not a loan, because, in this case, accepting the finding of the trial Court on this point, the liability for the repayment of the debt is upon the property of a workman and a non-workman and non-agriculturist jointly and so the definition of loan given in Section 2(9) of the U.P. Debt Redemption Act does not amply to such a transaction Secondly, he urges, that Zamin Alt is not a workman because it is only a parson who is not a proprietor who can be a workman (vide Section 2(20)) of the Act and the definition of 'proprietor' given in Section 2(13) is wide enough to cover ;he case of the proprietor of a house. Thirdly, be argues that the wages to which reference is made in Section 2(vi) of the Payment of Wages Act mean only daily wares and do not refer to a monthly salary. 5. The Learned Counsel for the opposite-party has raised a preliminary objection that in view of the Full Bench decision of this Court repotted in Salik Ram v. Ram Sarup 1946 O.A. l33: A.W.R. (C.C.) 133 : O.W.N. 230 the revision is net maintainable and an appeal should have been riled before the District judge. To meet this preliminary objection the applicant's Learned Counsel relies upon two Bench decisions of this Court reported in Harcharan Singh v. Mohammad Husain Khan 1911 O.A.R.: A.W.R. (C.C.)17 : O.W.N. 71 and Ram Sunder Pendey v. Paras Ram 1945 O.A. 267 : A.W.R. (C.C.)267 : O.W.N. 416. 6. There can be no doubt that the first mentioned case fully supports the argument of the applicant's Counsel that, even though an appeal lay to the Court of the District Judge, this Court could entertain an application u/s 115 of the Code of Civil Procedure. I, sitting as a single Judge, would be bound to follow the decision, although apparently the attention of the learned Judges was not drawn to the fact that eventually a second appeal would lie to the Chief Court because they say, at page 72, it has not been disputed in the present case that an appeal would lie, it it lies at all, from the Munsif's Order to the lower appellate Court. 7. The position has, however, been considerably modified in view of subsequent decisions of this Court. In Shyam Sunder Lal v. Chandan Davi 1943 O.A. 83 : A.W.R. (C.C.)34 : O.W.N. 150, one of the learned Judges composing the Bench, Madeley J. held that a second appeal to this Court was maintainable and he followed the view of the Full Bench of the Allahabad High Court in this respect. 8. In Fateh Singh v. Rameshwar Baksh Singh 1944 O.A. 124 : A.W.R. (C.C.) l24 : O.W.N. 177 a Bench composed of the learned person Chief Judge and the other Judge composing the Bench in Harcharan Singh v. Mohammad I Husain Khan 1911 O.A. 8 : A.W.R. (C.C.)17 : O.W.N. 71, Bennett J. say: Learned Counsel to the applicants concedes that an appeal lies and not a revision. See Shyam Sunday Lal v. Chandan Devi 1943 O.A. 83 : A.W.R. (C.C.)34 : O.W.N. 150, and Ketki Kunwar v. Ram Saroop 1942 A.W.K. (H.C.) 340 : 1944 A.L.J. 578. 9. The Court thereupon allowed the revision to be converted into an appeal on payment of court-fee (a procedure which cannot be adopted here). 10. Then came the Full Bench decision reported in Salik Ram v. Ram Sarup 1946 O.A. l33: A.W.R. (C.C.) 133 : O.W.N. 230, in which it was definitely laid down that in such cases the procedure is by way of appeal in the same way as the original decree, which it is sought to amend, would have been appeasable, but if the decree was passed u/s 12 of the Agriculturists Relief Act then there would be only one appeal and there could be revision to this Court if the requisite conditions for a revision were present. 11. After this came the decision of another Bench of this Court reported in Ram Sunder Pandey v. Paras Ram 1945 O.A. 267 : A.W.R. (C.C.)267 : O.W.N. 416, which is one of the cases upon which the applicant's Learned Counsel sought to rely. This case once more reviews the law on the subject of revision and refers to decisions of different High Court. With regard to the earlier bench case of Hur Charan Singh v. Mohammad Husain Khan 1911 O.A.R. : A.W.R. (C.C.)17 : O.W.N. 71, it only mentions it as an authority for the proposition that the fact that an appeal lies to the lower Court will not take away the powers of this Courts to revise the order passed by the trial Court. It then proceeds to cite other decisions of the Calcutta and the Allahabad High Courts which lay down the principle that a revision application u/s 115 of the CPC could only be entertained by the High Court if no appeal, either first or second, lies thereto. The learned Judges further point out that, since the matter before the Court in the case before them had arisen out of an application u/s 12 of, the Agriculturists' Relief Act, no appeal would, in view of the Full Bench decision, lie to the Chief Court. Consequently this Bench decided to entertain the application in order to avoid multiplicity of proceedings. Consequently this Bench decided to entertain the application in order to avoid multiplicity of proceedings. These decisions establish the proposition that it is only in cases in which no appeal at all, either first or second, lies to the Chief Court that a Revision Application will be entertained if no appeal is preferred to a lower appellate Court although such an appeal lay. At the same time it is to be remembered that this method of proceedings is extraordinary and should only be restored to for special reasons, otherwise in every case in which any question of jurisdiction is involved the aggrieved party can at once come up to the Chief Court without restoring to the normal procedure of an appeal to the lower appellate Court. Judged by these principles the present application cannot be entertained, since it the proper procedure had been followed, he case would have come unto this Court in record appeal. I, therefore, uphold the preliminary objection. 12. The whole case has, however, been argued before me by the Learned Counsel for the parties on the merits also and so it is but right that I should express my opinion on the points raised before me. Before I do so I must note that the Learned Counsel for the opposite-patties has urged that, whether the decision of the Munsif on the question of interpretation is right or wrong, no question of jurisdiction is involved. This is not so. It is only by placing one construct on upon the words of the Statute that the Munsif has taken to himself jurisdiction to amend a decree which is final between the parties. If the construction which the applicant contends for is accepted the Munsif would have no, jurisdiction to alter or amend the decree. Thus the question involved is one of jurisdiction. I, therefore, proceed to consider the arguments of the applicant's Learned Counsel on the merits. 13. A "loan" is denned in Section 2(9) of the U.P. Debt Redemption Act as an advance in cash or kind made before the first day of June, 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturists or workman. 14. 13. A "loan" is denned in Section 2(9) of the U.P. Debt Redemption Act as an advance in cash or kind made before the first day of June, 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturists or workman. 14. In the present case the Munsif has, as he was required to do u/s 11 of the Debt Redemption Act, apportioned the liability between the "workman" and the non-workman and he has not given the benefit of the Act to the non-workman. No objection has been taken to the apportionment, as a result of which the liabilities of the two judgment-debtors have become separated and the property of the workman alone is liable for his debts. But apart from this the transaction comes strictly within the definition of "loan" since it is a mortgage and in mortgages the whole of the property, and every portion of it, is liable for the whole debt. Thus, granting that the workman has a share in the property, his share is liable for the whole money now due under, the mortgage. The transaction is, therefore, a "loan" within the purview of Section 2(9) of the Debt Redemption Act. 15. Next it is argued that the word 'proprietor' as defined in Section 2(13) is wide enough to include the proprietor of a house. Consequently Zamin Ali, being owner of a share of the house mortgage is a proprietor and so he does not come within the definition, of "workman" contained in Section 2(20) of the Act. If such a wide meaning is ascribed to the word 'proprietor' it may even include the owner of bed or a few cooking utensils and on this interpretation no one could possibly be a workman at all. We must remember that the Debt Redemption Act was passed primarily to give relief to agriculturists. Consequently when the word "proprietor" is used it must have been used to denote the ownership of agricultural land. Moreover the definition of "proprietor" is itself inductive of this fact because it refers to "superior and inferior" proprietors and proprietors to whom the provisions of Section 77 of the Land Revenue Act apply. All these classes of proprietors are persons who have an "interest in agricultural land. Thus when the word "proprietor" is used it indicates the owner of agricultural land. All these classes of proprietors are persons who have an "interest in agricultural land. Thus when the word "proprietor" is used it indicates the owner of agricultural land. 16. It is to be noted that it is by no means admitted that Zamin Ali owns a share in the house. No doubt the mortgage deed itself recites the facts that he is the owner but the decree-holder in her application in reply to the judgment-debtors application for amendment clearly stated that the whole house belonged to Mst. Habiba Khan am and that Zamin Ali had no interest in it. This question was never raised and was consequently not considered by the Munsif. It is not necessary to decide it now. 17. Then it is argued that workmen are only those persons who are in receipt of daily wages and to support the plea, it is argued that the Indian Payment of Wages Act applies only to such persons. I do not find any justification for this plea. Section 4(2) of the Payment of Wages Act shows that the wage period may be a month even. In the present case the reply to the interrogatories sent to the N.W. Railway Press shows that Zamin Ali is in receipt of a monthly salary. He is, therefore, governed by the Payment of Wages Act and is a workman within the meaning of Section 2(20) of the Debt Redemption Act. 18. In the result the decision of the trial Court is maintained and this application is dismissed with costs.