- (1.) Learned counsel for the parties are agreed that a suit for recovery of Rs. 61,733.69 was filed by the respondent-Bank against the present petitioner on December 12, 1983. The learned trial Court had framed the following issues :- 1. Whether the suit has been instituted by a properly authorised person? OPP. 2. Whether defendant No. 1 has taken loan of Rs. 40000/- and had executed the documents as are mentioned in para No. 2 of the plaint? If so, to what effect? OPP. 3. Whether defendant No. 1 had hypothecated the tractor with the plaintiff-bank and had executed a mortgage-deed with respect to the agril. land as collateral security, if so to what effect? OPP. 4. Whether defendants No. 2 and 3 had stood personal guarantors for the payment of the loan amount and had executed guarantee-deed dated 28.11.1980 as alleged ? If so to what effect? OPP. 5. Whether at the time of institution of the suit a sum of Rs. 61,773.69 had become due to the plaintiff-bank towards the defendants as alleged, If so to what effect? OPP. 6. Whether the suit is within limitation? OPD. 7. Whether old tractor was sold to the defendant No. 1? If so to what effect? OPD. 8. Relief. The suit was decreed by the learned Court vide its judgment dated January 21, 1985.
(2.) In spite of the fact that the decree was passed on January 21, 1985, the Bank has not been able to recover the decretal amount till now. In this revision petition, the contention raised on behalf of the petitioner is that the loan had been obtained for the purpose of buying a tractor and as such, the learned trial Court could not have awarded interest at the contractual rate but was bound to award it at the rate of only 6 per cent from the date of the institution of the suit till the actual recovery of the amount.
(3.) I am unable to accept this contention. The nature of a loan is a question of fact. It has to be leaded and proved. In the present case, nothing has been produced to show that the petitioner had ever raised the plea that he had obtained a loan which was not 'a commercial transaction'. It has also not been shown that any plea to what effect was raised before the trial Court in the suit out of which the present execution proceedings have arisen. In fact, a perusal of the issues framed by the learned trial Court which heard and decided the suit originally shows that no dispute with regard to the rate of interest or as to the nature of the transaction was pleaded. In such a situation, there is nothing on record on the basis of which the petitioner may be entitled to contend that the transaction in question was not a commercial transaction or that the learned counsel has erred in passing the impugned order. It is well settled that the Court has only to decide the case pleaded and proved before it. Unless a specific plea is raised to the effect that the transaction was no of a commercial nature and the actual nature of the transaction is established, the decree passed by the Civil Court cannot be challenged in execution proceedings. In my considered view, the order passed by the Court is in strict conformity with the provisions of law and calls for no interference.;