Jagat Narayan, J - (1.) THIS is a second appeal by one Jitendra Sen son of Raja Hari Sen, ex-Istimrardar of Pisangan in the erstwhile State of Ajmer against a decree of the District Judge Ajmer confirming a decree of the Civil Judge Ajmer in a suit for recovery of money.
(2.) THE relevant facts for the purpose of this appeal briefly are that Raja Hari Sen father of the present appellant took a loan from the respondents in 1949. An accounting took place on 22nd May, 1952 and a fresh agreement was executed by Hari Sen on that date for a sum of Rs. 3,501/- in their favour. Hari Sen died shortly afterwards on 20th October 1952. His son Jitendra Sen became Istimrardar on his death. THE present suit was instituted against him for the recovery of the money due under the agreement dated 22nd May, 1952. THE suit was resisted by the appellant on the ground that no decree could be passed against him in respect of the liability incurred by Hari Sen in view of the provisions of sec. 29 of the Ajmer Land and Revenue Regulation, 1877 which runs as follows - "decrees for money not to be executed after death of Istimrardar or passed against representative - Notwithstanding anything contained in sec. 234 or sec. 252 of the Code of Civil Procedure or in any other enactment in force at the time this Regulation is passed, no decree for money against an Istimrardar shall be executed after his death, and no decree for money shall be passed against any person as the representative of a deceased Istimrardar. Provided that nothing herein contained shall prevent the enforcement of a lien or other charge against any property not being part of an Istimrari estate. " Sec. 50 and 52 of the present Code of Civil Procedure correspond to sec. 234 and 252 of the old Code. The Ajmer Land and Revenue Regulation, 1877 was repealed under sec. 9 (l) (a) of the Rajasthan Revenue Laws (Extension) Act, 1957, which came into force with effect from 15. 6. 58. It contained a saving clause under sec. 9 (4) the relevant part of which runs as follows - "in particular and without prejudice to the generality of the provision contained in sub-sec (3) any. . . . . . . . . . . . property acquired. . . . . . . . . . . . before the commencement of this Act in pursuance of a right conferred,. . . . . . . . . . . . by the provisions of the enactments and laws hereby repealed. . . . . . . . . shall not be affected by such repeal. . . . . . . . notwithstanding that such. . . . . . property. . . . . . . . is repugnant to, or inconsistent with or could not be acquired under, the provisions of the Rajasthan revenue laws. " 4. The contention on behalf of the appellant is that the right conferred on him under sec. 29 of the Ajmer Land & Revenue Regulation, 1877 was saved by this clause. The lower appellate court was of the opinion that it was not so saved. I am however of the opinion that this right is saved. On the death of Hari Sen on 22nd October, 1952 a right accrued under this provision in favour of Jitendra Sen who succeeded him. That right was that the property which he inherited from his father was not liable to be attached and sold to enforce an unsecured liability incurred by the latter during his life-time. Such right is, without doubt, property. As this right was acquired by Jitendra Sen before the repeal of the Ajmer Land and Revenue Regulation it was saved under sec. 9 (4) of the Rajasthan Revenue Laws (Extension) Act, 1957. On behalf of the respondents it was however contended that the above provision of law became void on the coming into force of the Constitution as it is hit by Art. 14, being unreasonably discriminatory, and by Article 19 (1) (f), being an excessive invasion of their fundamental right to carry on the profession of money lending. Reliance was placed on Budh Singh Vs. Sahabzada Mohd. Yaseen (1) and Mukan Chand Vs. Rao Raja Inder Singh (2 ). In Budh Singh Vs. Sahebzada a law of the Tonk State exempting houses belonging to members of the Royal family of Tonk from attachment and sale in execution of a decree was held to be void on the ground that the discrimination was unreasonable. In Mukan Chand Vs. Rao Raja Inder Singh certain provisions of the Rajasthan Jagirdars Debt Reduction Act were challenged. Some of the provisions were held to be reasonable restriction imposed on the exercise of property rights by the creditors in public interest namely to save the Jagirdars who constitute a section of the society, from being ruined economically, as a result of resumption of jagirs. But certain others were held to invade property rights excessively and were struck down under Article 19 (1) (f) of the Constitution. Sections 3, 4 and 6 of that Act provide for a distribution of the secured debt on the jagir land mortgaged and on the other property mortgaged in accordance with the principles contained in sec. 82 of the Transfer of Property Act as if they had been properties belonging to two distinct persons and for the reduction of the debt apportioned on jagir land by one-fifth. Section 7 (1) provides that the reduced amount so arrived at shall only be recoverable from the compensation and rehabilitation grant payable in respect of the jagir land of the judgment-debtor to the extent indicated in Schedule II, namely where the total compensation did not exceed rupeees one lac only half of it was attachable in execution of the decree, where it exceeded rupees one lac but did not exceed rupees two lacs, 55 per cent was attachable, where it exceeded rupees two lacs but did not exceed rupees four lacs, 65 per cent was attachable and where it exceeded rupees four lacs 75 per cent was attachable. These provisions were held to be reasonable restrictions in public interest. Sec. 7 (2) further provided that the balance of the reduced decretal amount would not be recoverable even from the non-jagir property of the judgment-debtor. This provision was held to be an excessive invasion on the rights of the creditors. It was observed - "it does not appear to us that there is sufficient reason to exempt the non-jagir property of the jagirdar judgment-debtor from being attached in execution to recover the balance of the money remaining unpaid after executing the decree against the compensation and rehabilitation grant under sec. 7 (i) (a) and (b ). Order 34 Rule 6, G. P. C. provides that where the net proceeds of the sale of the mortgaged property are insufficient to pay the amount due to the plaintiff the court may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance. There seems to us to be no justification for not allowing the decree-holder to recover the balance from other property of the judgment-debtor in those cases in which he would otherwise be entitled to a personal decree under the ordinary law. " On behalf of the appellant it was contended that the restriction imposed under sec. 29 of the Ajmer Land and Revenue Regulation 1877 was reasonable as it was necessary to grant protection to the Instimrardar to the extent provided in it. In the alternative it was argued that the original loan was taken by the father of the appellant in 1949 before the Constitution came into force and therefore it was not recoverable even if the restriction imposed became void on the coming into force of the Constitution. Taking the alternative case first I find that it has no force as a fresh agreement was entered into between the parties on 22nd May, 1952. The present suit is based on this fresh agreement and not on the original loan. If the restriction contained in sec. 29 of the Ajmer Lad and Revenue Regulation 1877 became void on the coming into force of the Constitution then the money in suit can be recovered from the present appellant. Coming now to the question of the reasonableness of the restriction I am of the opinion that it is an excessive invasion on the property rights of the creditors. It may have been reasonable to exempt the Istimrardari property from being proceeded against to enforce the liability of the deceased Istimrardar. But as it is, even the non-Istimrardari property inherited by the legal representative of the deceased Istimrardar has been exempted. I accordingly hold that the provision contained in sec. 29 of the Ajmer Land and Revenue Regulation 1877 became void on the coming into force of the Constitution. I In the result the decree passed by the lower appellate court is confirmed and the appeal is dismissed with cost s . ;