JOSHI GIRJADHARJI AND ANOTHER versus LACHMANJI PANTH AND OTHERS.

Citation: [1952] 1 S.C.R. 645 · Decided: 25-04-1952 · Supreme Court of India · Bench: M. PATANJALI SASTRI · Disposal: Dismissed

Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
645 
• > 
JOSHI GIRJADHARJI AND ANOTHER 
-, 
v. 
LACHMANJI PANTH AND OTHERS. 
[PATANJALI SASTRI c. J., SAIYID FAZL ALI, 
MuKHERJEA and DAs JJ.] 
U. P. Debt Redemption 
Act (XIII of 1940), ss. 2 (9), 21-
"Loan". "Suit to which Act applies", meanings of-Decree on 
mortgage--Person who is not agriculturist when advance is made-
W hether eatitled t-0 relief. 
A mortgage was executed by several persons on the 28th 
July, 1931. The term of the mortgage, namely six years, expired 
in July 1937, the mortgagees instituted a suit in May 1938 and 
a decree was passed in March 1939. 
An application for relief 
under the U. P. Debt Redemption Act (XIII of 1940) was made 
on 11th April, 1942, and this application was resisted on 
the 
ground that S, one of the mortgagors, had been 
assessed 
to 
income-tax and was therefore not an agriculturist, and the suit 
was not consequently "a suit to which the Act applied." The 
evidenoe 
showed that S was earning a month! y salary of Rs. 
90 
and that from February 1932 he had been assessed to income-tax 
till the year 1936. 
The High Court held, relying on the Full 
Bench ruling in Ketki Kunwar v. Ram Saroop (I.L.R. 1943 All. 
35), that under sec. 21 of the Act the mortgage money could be 
recovered only from the mortgaged property and not personally 
and that the proviso 
to sec. 2 (9) of 
the Act. had therefore 
no application and the question whether S was an agriculturist 
on the date of the mortgage was immaterial. As S was admitted-
ly an agriculturist on the date of the suit, the High Court held 
that the judgment debtors 
were entitled to relief under the Act" 
On appeal 
Held, that, assuming that the proviso to sec. 2 (9) applied 
and that in order to be a "loan" within the meaning of the Act 
it must be shown that the advance was made to one who at 
the date of the advance was an agriculturist, S was not an agri-
culturist on the 28th July, 1931, as the Indian 
Finance (Supple-
mentary and Extending) 
Act of 1931 which reduced the taxable 
minimum 
from 
Rs. 
2,000 to Rs. 
1,000 was 
passed 
only in 
November 
1931 · and 
income-tax was 
first 
deducted from 
his 
salary only in February, 1932. 
Quaere : Whether the Full Bench decision in Ketki Kunwar 
v. Ram Saroop (I.L.R. 1943 All. 35) is correct. 
CIVIL 
APPELLATE 
JURISDICTION : Civil 
Appeal 
No. 64 of 1951. On Appeal from the Judgment and 
5-7 SCI/71 
195Z 
April 25 
1952 
/oshi Girjadharji 
and Another 
v. 
l..achmanji Panth 
and Others. 
646 
SUPREME COURT REPORTS 
[1952] 
Decree dated the 16th April, 1948, of the High Court of 
Judicature at Allahabad (Malik C. J. 
and 
Prasad J.) 
in First Appeal No. 358 of 1943 arising out of the 
Judgment and Decree dated the 22nd February, 1943, 
of the Court of the Additional Civil Judge, Benares, 
in Original Suit No. 33 of 193.8. 
Gopi Nath Kunzru (K. B. Asthana, with him) for 
the appellants. 
Krishna Shankar for the respondents.' 
1952. April 25. 
delivered by 
The judgment of the Court was 
DAs J.-This appeal 
arises 
out of 
an application 
by five out of ten judgment-debtors made under 
sec-
tion 8 of the U. P. Debt Redemption Act (No. XIII 
of 1940) for ascertaining the amount due by them 
in 
accordance with the provisioqs of sections 9 and 10 
of that Act and for amerid!rig the decree passed on 
March 31, J939, by the' 'Additional 
Civil 
Judge, 
Banaras, in O.S. No. 33 of 1938. The facts material 
for the purposes of this ap.P.eal may now be briefly 
stated. 
By a mortgage deed 
e11~Gute9, . Qn. Ju.ne 
22, 
1922, 
Madho Ram Sita Ram, Jai Ram and Lakshman, all 
sons of Pandit Raja Ram Pant Sess, mortgaged cer-
tain immovable properties in favour 
of 
Damodarji, 
son of Kamta Nathji, owner of 
the Kothi Joshi 
Shivanath Vishwanath for the due repayment of the 
sum of Rs. 8,000 advanced on that date by a cheque 
together with interest thereon at 12 annas per cent. per 
mensem with quarterly rests. 
On July 28, 1931, 
the 
'y 
said mortgagors and their sons executed a mortgage 
over the same properties irt favour of Kothi Kamta 
Nathji Vishwanathji for 
the 
due 
repayment 
of 
Rs. 3,000 with interest thereon at ·twelve annas · per 
cent. per mensem with quarterly rests. 
It is recited 
in the deed that the sum of Rs. 8,000 was advanced 
, 
on this date by a cheque anc;l that the 
amount was 
·r ·· 
utilised in paying up the amount due under the earlier 
y 
' 
-
S.G.R. 
SUPREME COURT REPORTS 
647 
mortgage 
deed 
to Damodarji proprietor of 
Kat

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