RAMA PRASAD SINGH Vs. SAJAN MAHTO

JUDGEMENT

(1.) This is a decree-holder's second appeal from orders of the Courts below exempting one acre of the judgment-debtor's land under Section 15, Bihar Money- Lenders (Regulation of Transactions) Act, from sale in execution of a decree. The judgment-debtor-respondent is a cultivator holding lands with others in two villages Arna and Saphi. In execution of a decree, the decree-holder-appellant first sought to attach the judgment-debtor's interest in the whole of the land held by him and his cosharers. This land, it is said, exceeded 20 bighas. Subsequently, this application was amended by the decree-holder, and in the amended petition he sought to attach and sell five separate plots in khata Nos. 233 and 234 in village Arna and khata Nos. 119 and 88 in village Saphi. These lands were said to be the judgment-debtor's share of the whole area held by him and his cosharers.

(2.) It is clear from the amended petition that the land sought to be sold is land in the exclusive possession of the judgment-debtor and in which he alone is interested. The area of the land sought to be sold is stated to be 1 bigha 12 kathas 5f dhurs, and the decree-holder claims that this is the judgment-debtor's land which can be sold to satisfy the decree held against him. In the application for execution the judgment-debtor is described as "girhasti". The judgment-debtor- respondent applied under Section 15, Bihar Money-Lenders Act, praying that one acre of his land should be exempted from the execution sale. This application was opposed by the decree-holder; but both the Courts below have held that one of the judgment-debtor's land must be exempted from sale--hence this second appeal. Section 15, Bihar Money-Lenders Act, is in these terms: (1) Notwithstanding anything to the contrary contained in any other law or in anything, having the force of law, where a decree is passed before or after the commencement of this Act for the payment by an agricultural debtor of the amount due on any loan advanced to him by a money-lender, the Court executing the decree (i) shall exempt from sale one acre of the land comprised in the holding or holdings of the judgment-debtor, if the area of such land does lot exceed three acres; and (ii) shall exempt one acre, and may exempt any further portion of such land if the area of such land exceeds three acres; provided that the total area exempted from the sale does not exceed one-third of the total area of such land. (2) For the purposes of this Section "agricultural debtor" means a raiyat the total area of whose holding ?or holdings does not exceed such area as the Provincial Government may fix for the district or part of the district in which such holding or holdings are situate.

(3.) By a Government notification dated 12 January 1940, No. 116-VIA-13- Com.--Governor of Bihar in the exercise of powers conferred by Sub-section (2) of Section 15 fixed for the purposes of the said Sub-section (2) an area of five acres as the area which the total area of a raiyat's holding or holdings shall not exceed in any district of the province other than the districts of the Chota Nagpur Division and the district of the Santal Parganas.