Sinha, J - (1.)This is an appeal against an order of the learned Civil Judge of Muzaffarnagar by which he refused to extend to the appellant the benefits of the U.P. Debt Redemption Act (No. 13 [XIII] of 1940). The facts are these:
(2.)A mortgage was made many years ago by the appellant Shiam Sunder Lal A portion of the property covered by that mortgage was subsequently transferred by him under two usufructuary mortgages to Harnam Singh and Nand Kishore. Another portion went, under an auction sale, to a man named Chhajju Mal. It is important to bear in mind that under none of these transactions, the money payable to the mortgagee under the mortgage of 1914 was left in the hands of the transferees. It must be remembered that the whole of the property has not passed out of the hands of the mortgagor, Shiam Sunder Lal. The mortgage was put in suit and a decree was passed on its basis. The decree-holder put the decree in execution and Shiam Sunder Lal applied for the benefits of the U.P. Debt Redemption Act. The learned Civil Judge has held that, as the liability for the repayment of the debt has been transferred, the case falls within the mischief of Section 2, Clause (9) of the Act and the mortgagor has forfeited his right to claim those benefits. He was of opinion that the transfer of the property, even in the absence of an express stipulation to transfer the liability, itself carried with it the liability to discharge, at least proportionately, the mortgage-debt. We think the learned Judge has taken a wrong view of the law. The material portion of Section 2, Clause (9) is in these terms: Loan means an advance...but does not include an advance the liability for the repayment of which has...been transferred to another person....
(3.)The important expression is the liability . The liability must mean the whole of the liability and not merely a portion of it. If the Legislature had intended that the transfer of any portion of the liability would deprive the debtor of the benefits of the Act it was for it to say so in express terms. In this case what has been transferred is not the liability or the whole of the property but only a portion of the property. If a portion of the property is still with him, the judgment-debtor is not even after the expiry of six years from the date of the mortgage or the date of promise, if any, absolved from the obligation to pay the debt. He cannot, therefore, be deprived of the benefits of the Act. This view receives support from the case in Badri Das V/s. Qabul Chand ( 43) 1943 A.L.W. 288. We therefore think that the view taken by the Court below is wrong. We, accordingly, allow the appeal, set aside the order of the Court below and send the case back to that Court with a direction that it should be re-stored to its original number and tried according to law. Costs will abide the result.