JUDGMENT Pathak, J. - This is a defendant's appeal arising out of a suit under S. 33, U.P. Agriculturists' Relief Act, in respect of a mortgage, dated 16-8-1934, executed by the plaintiff in favour of the defendant for a sum of Rs. 500. The plaintiff claimed the benefit of the Debt Redemption Act (13 [xiii] of 1940). Thereupon the defendant made a declaration under s. 4 of that Act and opposed the prayer of the plaintiff upon the ground that, by reason of that declaration, the Debt Redemption Act was not applicable. An application was also made by the defendant praying that a decree be passed in his favour for such amount as might be found due from the plaintiff. 2. The trial Court was of the opinion that the suit was not one for recovery of loan and the declaration made by the defendant was not effective. The result was that the plaintiff was given the benefit of the provisions of the Debt Redemption Act and it was declared that nothing was due to the defendant from the plaintiff in respect of the mortgage in suit. Against this decree the defendant appealed. The lower appellate Court affirmed the view taken by the trial Court and dismissed the appeal. According to the lower appellate Court, the application made by the defendant praying that a decree be passed in his favour did not alter the character of the suit, which was one for account; and the suit not being one for recovery of loan, s. 4, Debt Redemption Act, bad no application. 3. The sole question which requires consideration in this appeal is whether s. 4, Debt Redemption Act, would apply to a suit under s. 83, U.P. Agriculturists' Relief Act, in a case in which the defendant has made an application' for a decree being passed in his favour. Section 4, Debt Redemption Act, so far as it is relevant, is as follows: 4. (1) The provisions of this Act shall not apply to a suit for the recovery of a loan from an agriculturist where the creditor declares in accordance with the provisions of sub-s. (2) that if a decree is passed in his favour either for the whole or part of the claim such decree shall not be executed against the land, agricultural produce or person of such agriculturist. (2) The declaration mentioned in sub-s. (1) shall in the case of a suit pending at the commencement of this Act, be made at any time before the decision of the suit and in the case of a suit instituted after the commencement of this Act, in the plaint.... The answer to the question propounded above will depend upon the decision of the question whether the present suit is one "for the recovery of a loan" within the meaning of S. 4. It has not been disputed that the transaction in question is a "loan" within the meaning of the Debt Redemption Act. All that is necessary is, therefore, to examine the nature of the suit under s. 33, U.P. Agriculturists' Relief Act. Such a suit is always initiated by a plaint filed by an agriculturist debtor. The statute enjoins on the Court to take necessary accounts and to declare the amount payable by the plaintiff to the defendant. In case, the Court finds that the money is payable by the plaintiff to the defendant, the latter is given the power to make an application praying that a decree be passed in his favour, and thereupon it is incumbent upon the Court to pass such a decree. Section 33 (3) prescribes the court-fees payable upon an application which the defendant may file for a decree being passed in his favour. The fee thus prescribed is "the amount, if any, by which the fee which would be payable on a plaint in a suit for the recovery of the loan declared under that sub-section [viz. sub-s. (2)] exceeds the fee already paid by the plaintiff on his plaint, or the fee prescribed by Art. 1(b) of Sch. 11, Court-fees Act, 1870, whichever is greater." Thus the total amount of fee paid both by the plaintiff and the defendant in a suit under s. 33, where an application of the nature mentioned above has been made by the defendant, would generally be the fee payable on a plaint in a suit for recovery of the loan. In my judgment, the suit, which was originally one for account, is converted into a suit for recovery of loan as soon as an application with the proper court-fee is made by the defendant. In my judgment, the suit, which was originally one for account, is converted into a suit for recovery of loan as soon as an application with the proper court-fee is made by the defendant. In other words a suit under s. 33 has the potentiality of being converted into one for recovery of loan upon an application made by the defendant. 4. The application made by the creditor is aimed at obtaining a decree in the same manner as the plaint in an ordinary suit for recovery of loan. Thus the object of the suit under S. 83, Agriculturists' Relief Act, is not merely to take an account of the loan and to declare the sum due from the plaintiff to the defendant, but also to grant a decree for the sum so found in favour of the defendant. In substance and in truth, therefore, such a suit is one for recovery of loan. In my judgment, it possesses all the essential characteristics of a suit for recovery of loan, and to deny that character to a suit under s. 33, Agriculturists' Relief Act, where the defendant has prayed for a decree, would, in my opinion, be ignoring the real nature of the proceedings in such a suit and would be sacrificing the sub stance to the form. It is manifest that any other view would defeat the object of the, Legislature in enacting the provisions of the law which are under consideration. If an ordinary suit for recovery of loan is launched in Court and the creditor makes a declaration under s. 4, Debt Redemption Act, the debtor would be debarred from claiming benefits under that Act. It would be anomalous to hold that the result should be different if a declaration in accordance with S. 4 Debt Redemption Act, is made in a suit under S. 33, Agriculturists' Relief Act, where an application is made by the creditor for a decree being passed in his favour. I do not perceive any difference between a decree passed in favour of a creditor on the basis of a loan in an ordinary suit and a decree passed in his favour in a suit under s. 33, nor is there any essential difference in the nature of the proceedings in the two suits. 5. I do not perceive any difference between a decree passed in favour of a creditor on the basis of a loan in an ordinary suit and a decree passed in his favour in a suit under s. 33, nor is there any essential difference in the nature of the proceedings in the two suits. 5. Learned counsel for the respondent has placed strong reliance on the Full Bench decision in Bhagwan Das Vs. Goswami Radhey Lal, AIR 1945 All 271 , Bhagwandas v. Radhey Lal. In my judgment, the question which falls to be decided in the present appeal did not arise in that case. Although there are some observations with regard to a suit under S. 33, Agriculturists' Relief Act, the question of the nature of the suit, in a case where the defendant files an application for a decree being passed in his favour, did not come in for consideration before the Full Bench; and, in my judgment, that Full Bench decision does not furnish any answer to the question which has arisen in the appeal before me. 6. Learned counsel for the respondent has also urged that no decree could be passed in favour of the defendant as the transaction in question was a usufructuary mortgage. Learned Counsel, however, has not been able to satisfy me that this point was ever raised in the written objections filed on behalf of the plaintiff in the Court of first instance. The plaintiff did not ask for an issue to be framed upon this point in that Court, nor was it raised before the lower appellate Court. The mortgage deed has not been placed before me and I am not aware of its terms. Learned counsel appearing for the parties state that the mortgage deed is not upon the record. In these circumstances, it is not possible for me no decide this point even if I had allowed it to be raised for the first time in this appeal, and, therefore, I cannot give effect to this contention. 7. For the reasons indicated above, I allow the appeal, set aside the decrees passed by the Courts below and send back the case to the Court of first instance with the direction that it will pass a decree afresh in the light of the decision in this appeal. 7. For the reasons indicated above, I allow the appeal, set aside the decrees passed by the Courts below and send back the case to the Court of first instance with the direction that it will pass a decree afresh in the light of the decision in this appeal. The defendant will be entitled to his costs incurred in this Court and in the lower appellate Court from the plaintiff, and the costs already incurred in the trial Court and to be incurred hereafter shall abide the event. Leave for Letters Patent appeal is allowed.