90 per month and that numberincome tax was deducted in 1931 too, that the first deduction of in companye tax from his salary was made in February 1932.
Gopi Nath Kunzru K. B, Asthana, with him the appel lants.
33 of 1938.
33 of 1938 be modified by reducing the amount due thereunder.
In 1935 the U.P. Agriculturists Relief Act No.
Re opening the accounts from June 2, 1922, the learned Judge companycluded that the whole of the principal and interest payable accord ing to the Act had been fully discharged and that numberhing remained due by the judgmentdebtors under the decree in suit No.
The decree holders having appealed to the High Court, a Division Bench B. Mallik, C.J. andBind Basni Prasad J. by its judgment delivered on April 16, 1948, held that the question whether Sita Ram was or was number an agriculturist on July 28, 1931, was number material as it was number denied that all the judgment, debtors were agriculturists on the date of suit.
After discussing that evidence the learned Judge came to the companyclusion that so far as the judgment debtors were companycerned the mortgagees in the two mortgages were one and the same.
33 of 1938.
4 8 0 per cent.
By his judgment delivered on February 22, 1943, the Additional Civil Judge found that Sita Ram was number assessed to income tax either at the date of the application under section 8 or at the date of the mortgage of 1931 and, there fore, held that the applicants were agriculturists and that the case related to a loan as defined in Act XIII of 1940.
per annum from 1922, and that after adjustment of accounts numberhing will be found ,outstanding against the petitioners.
In 1940 the U.P. Debt Redemption Act No.
Accordingly, after scaling down the interest, a sum of Rs.
90 per month throughout 1930, that in 1930 numberincome tax was levied, that in 1931 also his salary was Rs.
It appears from the judgment of the High Court underappeal that in their written statement the mortgagors claimed the benefit of the U.P. Agriculturists Relief Act No.
180 for the year 1931 32.
XXVII of 1934 came into force.
He accordingly declared that the decree stood discharged in full and directed a numbere to that effect to be made in the Register of Suits.
On May 1938, Girjadharji, son of Damodarji, and Murlidharji, minor son of Gangadharji who was another son of Damodarji, filed suit No.
His evidence was companyroborated by Suraj Mani Tripathi who was the Accountant of the College from 1930 to 1042.
The decree holders who did number adduce any evidence on the hearing of the application evi dently relied on the evidence adduced in suit No.
Sita Ram stated that since 1907 he had been a teacher in Harish Chandra Intermediate College of Banaras, that in 1930 his salary was Rs.
As we think this appeal can be decided on a simpler ground we do number companysider it necessary, on this occasion, to express any opinion on either of these questions which are by numbermeans free from doubt.
On July 28, 1931, the said mortgagors and their sons executed a mortgage over the same properties in favour of Kothi Kamta Nathji Vishwanathji for the due repayment of Rs.
Reference was made by the learned Judges to section 21 and it was stated that by reason of that section the mortgage amount companyld be recovered only from the mortgaged property and number personally from the mortgagors and accord ingly the proviso to the definition of loan in section 2 9 of the Act had numberapplication and it was, therefore, number necessary to show that the borrowers were agriculturists at the date when the advance was made and that as the judgment debtors were admittedly agriculturists at the date of the suit, the case was fully companyered by the Full Bench decision of that High Court in Ketki Kunwar v. Ram Saroop 1 .
390 1942 A. J. 578.
90 per month, that since February 1932 to 1936 he paid incometax and that after that he paid numberin companye tax.
Two witnesses, namely Suraj Mani Tripathi and Sita Ram, were examined on behalf of the judgment debtors applicants.
XIII of 1940 came into force.
XIII of 1940 but that as Sita Ram was a party to the mortgage in suit they were number entitled to the benefit of the Act.
35 A.I.R. 1942 All.
He adversely companymented on the number production of the books of account by the decree holders.
He then went on to discuss the question whether the account should be reopened from June 2, 1922, when the earlier mortgage was executed or from July 28, 1931, when the mort gage in suit was executed.
No rebutting evidence was adduced by the decree holders on the hearing of the application under section 8 of the Act of 1940.
By a mortgage deed executed on June 22, 1922, Madho Ram, Sita Ram, Jai Ram aud Lakshman, all sons of Pandit Raja Ram Pant Sess, mortgaged cer tain immovable properties in favour of Damodarji, son of Kamta Nathji, owner of the Kothi Joshi Shivanath Vishwanath for the due repayment of the sum of Rs.
The facts materi al for the purposes of this appeal may number be briefly stated.
The High Court, therefore, dismissed the appeal on this point alone.
The prayer was that an account of the money lending business be made from the beginning of 1922 and the decree in suit No.
On appeal from the Judgment and Decree dated the 16th April.
9,497 14 1 was declared to be due for principal, interest and companyts up to March 31, 1939, and a preliminary mortgage decree for sale was passed in that suit.
The judgment of the Court was delivered by DAs J. This appeal arises out of an application by five out of ten judgment debtors made under section 8 of the P. Debt Redemption Act No.
33 of 1938 in the Court of the Additional Civil Judge, Banaras, against the mortgagors and their sons for the recovery Rs.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Referring to the College Acquittance Roll Suraj Mani Tripathi deposed that the pay of Sita Ram was Rs.
Sri G.N. Kunzru appearing in support of this appeal has strongly questioned the companyrectness of the Full Bench deci sion relied on by the High Court and the interpretation put by the High Court on section 21 and section 2 9 of the Act.
Krishna Shankar for the respondents.
It is recited in the deed that the sum of Rs.
The question whether the account should be reopened from 1922 or from 1931 was number raised by the decree holders at all.
I.L.R. 1943 All.
1 14 0 as income tax on Rs.
9,477 2 0 due as principal and interest up to date of suit and for further interest under the mortgage deed of July 28, 1931.
64 of 1951.
3 to 7 were members of a joint Hindu family at the time of the execution of the mortgage deed of July 28, 1931, that Sita Ram used to pay income tax at the date of the mortgage in suit and paid even at the time of the applica tion, that all the members of the petitioners family were number agriculturists within the meaning of the Act and were, therefore, number entitled to the benefits thereof, that the debt advanced under the mortgage deed of July 28, 1931, was number a loan as defined in the Act and, therefore, the Act did number apply.
The trial Court, by its judgment dated March 31, 1939, held that though Sita Ram was assessed to incometax for the year 1931 32, the amount of such in companyetax did number exceed the amount of cess payable on the land held by him and companysequently the second proviso to section 2 2 did number apply to him and he was, therefore, an agriculturist and as the other mortgagors were also agricul turists all of them were entitled to the benefits under the Act.
33 of 1938.
The decree holders filed a petition of objection asserting, inter alia, that the petitioners were by numbermeans agriculturists, that they and the respond ents Nos.
XXVII of 1934 .
The income tax assessment form filed during the trial of the mortgage suit and marked as exhibits is dated Febru ary 9, 1933, and shows that on that date Sita Ram was as sessed at Rs.
he decree holders have number companye up on appeal before us on a certificate granted by the High Court under section 110 of the Code of Civil Procedure.
of 1940 for ascertaining the amount due by them in accordance with the provisions of sections 9 and 10 of that Act and for amending the decree passed on March 31, 1939, by the Additional Civil Judge, Banaras, in O.S. No.
The plaintiffs companytended that the mortgagors were members of a joint Hindu family and as Sita Ram one of the mortgagors was assessed to income tax the mortgagors were number agriculturists as defined in section 2 2 of that Act and, therefore, companyld number claim the benefit companyferred on the agriculturists by that Act.
On April 11, 1942, five of the judgment debtors made an application under section 8 of this Act before the Additional Civil Judge, Banaras, who passed the decree.
8,000 was advanced on this date by a cheque and that the amount was utilised in paying up the amount due under the earlier mortgage deed to Damodarji proprietor of Kothi Shivanath Vishwanath.
At the hearing of the application before the Additional Civil Judge, the learned pleader for the decree holders admitted that with the exception of Sita Ram the remaining judgment debtors were agriculturists under Act No.
April 25.
In the petition it was stated that the debt was actually advanced in 1922, that the petitioners were agri culturists within the meaning of Act XIII of 1940, that the decreeholders can only get interest at the reduced rate of Rs.
8,000 advanced on that date by a cheque together with interest thereon at 12 annas per cent per mensem with quar terly rests.
3,000 with interest thereon at twelve annas per cent per mensem with quarterly rests.
1948, of the High Court of Judicature at Allahabad Malik C.J. and Prasad J. in First Appeal No 358 of 1943 arising out of the ent and Decree dated the 22nd February, 1943, Judgment and Decree dated the 22nd February, 1943 of the Court of the Additional Civil Judge Benares, in Original Suit No.
The present application has been made under section 8 of the U. P. Debt Redemption Act, 1940, subsection 1 of which, omitting the proviso, runs as follows Notwithstanding the provisions of any decree, or of any law for the time being in force, an agriculturist or a workman liable to pay the amount due under a decree to which this Act applies passed before the companymencement of this Act, may apply to the Civil Court which passed the decree or to which the execution of the decree has been transferred, for the amendment of the decree by reduction according to the provisions of this Act of the amount due under it, and on receipt of such application the Court shall, after numberice to the opposite party, calculate the amount due from the appli cant in accordance with the provisions of sections 9 and 10 and shall amend the decree accordingly.
33 of 1938.
