- (1.) A mortgage deed without possession was executed by the applicant in favour of the decree-holder opposite party, Faqir Chand, on 2-2-1926. A suit was brought on this mortgage in the year 1939 and a decree obtained on 25-9-1939. On 28-1-1941, an application was made under Section 8, U. P. Debt Redemption Act 13 of 1940 for amendment of the decree. On 19-4-1941, the decree-holder made a declaration that the decree shall not be executed against the land, agricultural produce or person of the agriculturist. On the declaration having been made the court refused to amend the decree. That order was affirmed by the learned Civil Judge and this civil revision was filed by the judgment-debtor under Section 115, Civil P. C. It was referred by a learned single Judge to a Division Bench and the Division Bench has referred the following question of law for decision by a larger Bench: "whether or not a decree recoverable from an agriculturist can be amended under the provisions of the U. P. Debt Redemption Act if the creditor declares that such decree shall not be executed against the land, agricultural produce or person of such agriculturist even though the decree is, for some reason, not executable against the land, agricultural produce or person of the agriculturist?" In other words, whether a declaration under Section 4 can be made by a decree-holder only in a case where he can proceed in execution of the decree against the person of the judgment-debtor or against his land or agricultural produce or whether such a declaration can also be made in a case where, for some reason, the decree was not executable against the land, agricultural produce or person of the judgment-debtor.
(2.) LEARNED counsel has urged that the Debt Redemption Act was concerned with and wanted to save the 'land' belonging to an agriculturist, which was defined in Section 2 (3) as meaning land in a mahal in the Uttar Pradesh but not including land occupied by buildings or appurtenant thereto or land within the limits of any municipality, cantonment or notified area; the 'agricultural produce', which was defined in Sub-section (2) of Section 2 as meaning agricultural produce of any agriculturist raised by him or by his servants or by labour hired by him and including crops, whether standing or gathered, and the fruit and flowers of trees and plants; and the 'person of the agriculturist'; that if, therefore, there was no question of saving land or agricultural produce or the person of the agriculturist then there was no point in asking the decree-holder to make a declaration. If this argument is accepted one would except that to a case where land, agricultural produce or person of a judgment-debtor is not in a jeopardy and cannot be proceeded against in execution of a decree the Act will not be at all applicable. The argument of Mr. Jadish Swarup, however, is that in such a case the decree-holder cannot prevent the decree being amended under the Act, while where land, agricultural produce or the person of the judgment-debtor could be proceeded against in execution, the decree-holder can prevent the amendment of the decree by giving a declaration that he will not proceed against land, agricultural produce or person of the agriculturist.
(3.) IN the case before us, the suit was filed more than six years after the mortgage debt had become payable. The personal remedy was, therefore, barred. The property mortgaged, the learned counsel has informed us, was house property and, therefore, it could not be included in the definition of the words "land or agricultural produce".;