LACHMAN DUSADH Vs. SUCHIT RAI

JUDGEMENT

(1.) The question which this Bench is required to decide in this appeal is whether a judgment-debtor under a mortgage decree who is also an agricultural debtor within the meaning of the expression as used in the Bihar Money-Lenders (Regulation of Transactions) Act, 1939, is entitled to such relief as is afforded by Section is of the Act. This question arises upon the following facts: The respondents having obtained a mortgage decree against the appellants for the sale of the mortgaged property are proceeding with the execution of the decree. It has been found by both the Courts below that the appellant-judgment-debtors are agricultural debtors and that they hold only 2 bighas 15 kathas 16 dhurs of land (which is equivalent to about 2 acres). The mortgage was in respect of 1 bigha 18 kathas 9 dhurs only and the decree under execution is for the sale of this property. Out of the balance, an area of 14 kathas 18 dhurs has been given in usufructuary mortgage by the appellants to another creditor and only 3 kathas 18 dhurs remain in their khas possession. The only point which the appellants have put forward in the Courts below and in this Court is that under Section 15, Clause (2) of the Money Lenders Act, they are entitled to the exemption of one acre of land from the sale which is going to be held in pursuance of the decree. Both the Courts below have held that the appellants are not entitled to this exemption and hence they have come up in second appeal to this Court. Section 15 reads as follows: (1)Notwithstanding anything to the contrary contained in any other law or in anything having the foroe 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 oomprised in the holding or holdings of the judgment-debtor, if the area of such land does not 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.

(2.) It is contended that the object of the Section is to afford protection to agricultural debtors and the Section must be construed with reference to this object as liberally as possible. The rule of "beneficial construction" upon which reliance is placed is enunciated as follows in Maxwell on the Interpretation of Statutes, Edn. 8, at p. 61: It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it.

(3.) The Courts below have in dealing with the matter relied on certain cases decided under Section 60, Civil P. C. This Section provides among other things that the houses and other buildings belonging to an agriculturist and occupied by him shall not be liable to attachment and sale in execution of a decree. In the cases upon which the Courts below have relied it has been held that if a house occupied by an agriculturist is specifically mortgaged, it is not protected from sale in execution of a decree upon the mortgage. The leading cases on the subject are Bhagwandas V/s. Hathibhai (79) 4 Bom. 25, Bhola Nath V/s. Mt. Kishori (12) 34 All. 25 and Mubarak Husain V/s. Ahmad . In the last mentioned case there was a difference of opinion between Ryves and Mukerji JJ. and the case was referred to Walsh J. who agreed with the opinion of Mukerji J. and held that proviso (c) to Section 60 did not apply to sales in pursuance of mortgage decrees directing sale of the mortgaged property. In dealing with the matter, Walsh J. made the following observations among others: I am doubtful whether according to the strictly juristic view, the sale of mortgaged property under a mortgagee's decree for sale is really "execution" at all. It is satisfaction of the decree. When a creditor obtains a decree for a debt, and the debtor pays--after the decree, the decree is satisfied, not executed. If the debtor does not pay, the law executes the decree, if it can, by realising the amount out of any available property of the debtor which it attaches and sells. In the case of a mortgage decree, the property ordered to be sold is not something which is compulsorily substituted for the obligation contained in the contract and carried forward into the decree. It is the obligation itself. The sale is the satisfaction of the contract and of the decree. Sir Comer Petheram took this view in the course of a judgment in Maseyk V/s. Steel & Co. (87) 14 Cal. 661 where he spoke of the decree being one for specific performance of the contract between the mortgagor and the mortgagee.