JUDGMENT Bind Basni Prasad, J.
1. This is a second appeal from an order passed by Mr. Oak, District Judge of Azamgarh, upholding in appeal the order, dated 24-7-1943, passed by the late Lal Bhagwati Dayal Singh, Civil Judge, dismissing the objections of the judgment-debtors in an execution proceeding. The undisputed facts are as follows :
2. On 25-3-1934, one Rai Achhuta Nand executed a pronote in favour of the decree-holder respondent, Sm. Naraini Devi. In 1937, she brought a suit on the foot of the pronote for the, recovery of the amount due under it. On 5-4-1937, a compromise decree was passed according to which the amount sued for together with pendente lite and future interest and costs were decreed. The said amount was payable in thirteen six-monthly instalments. It was stipulated that a period of grace of two months would be allowed for payment of every instalment, but in the event of default of any three instalments the entire decretal amount was to become due at once. Rai Achhuta Nand died on 1-10-1940, after the decree. On 22-10-1940, the respondent made an application for the execution of the decree alleging that as the first three instalments were in arrears the whole amount had become due. She prayed for the realisation of Rs. 4,292-4-0, which sum included interest and costs, by the attachment and sale of certain zamindar-property in two villages. There was the usual prayer for the substitution of the names of the heirs of Rai Achhuta Nand. The three appellants, who are minors, are his sons. Their names were duly substituted for the deceased judgment-debtor. On 7-4-1942, the present appellants filed an objection. A number of grounds were taken; for the purposes of this appeal it is relevant to mention only one of them, namely, that the objectors were agriculturists within the meaning of the term as defined in Sub-section (3) of Section 2, U. P. Debt Redemption Act, 1940 (U. P. Act XIII [13] of 1940), that the debt on the basis of-which the decree was obtained was a 'loan' as defined in Sub-section (9) of Section 2 of the said Act, that the judgment-debtors were entitled to the amendment of the decree and the reduction of interest in accordance with Sections 8, 9 and 10 of the Act and that the property sought to be sold was protected by Section 17 of the Act and, as such, it could not be sold in the execution of the decree. It is important to note here that the judgment-debtors did not contest the allegation that no instalments had been paid. In fact they alleged certain circumstances in their objection for being excused for the default. Learned Civil Judge repelled these objections. He held that as Rai Acchuta Nand, the original debtor, was paying more than Rs. 1,000 as land revenue, then he was not an agriculturist and that the present objectors are not entitled to the benefit of the U. P. Debt Redemption Act, 1940. He seems to have been of the opinion that an advance is not a 'loan' as defined in the above-mentioned Act if it is made to a non-agriculturist but at the time of the execution of the decree is recoverable from an agriculturist. The judgment-debtors went up in appeal before the learned District Judge, but the point does not seem to have been pressed before him.
3. When the case first came up before the Full Bench, the question arose whether taking the three appellants individually they held or not the status of an agriculturist. Time was given to the parties to produce documentary evidence on this point. The position, as disclosed on the date of the final hearing of this appeal before the Full Bench, was that Rai Achuta Nand was not an agriculturist at the time: of the execution of the pronote as he paid more than Rs. 1000 per annum as land revenue for himself and his sons. But at the time of the execution application the appellants taken individually were agriculturists, as the aggregate of rent and ten times the local rate payable by each of them in respect of his share does not exceed Rs. 1000/ Now Clause (e) (ii) of Section 3, U. P. Debt Redemption Act, 1940, provides :
"For the purposes of this Act--(e) where the aggregate of the rent and ten times the local rate, if any, payable by a joint Hindu family -- (ii) exceeds one thousand rupees, a member of such family shall be deemed to be an agriculturist only if the aggregate of the rent and ten times the local rate payable in respect of his share and the shares of his male lineal, ascendants and descendants in the joint family property does not exceed one thousand rupees."
There is a proviso to this clause and it runs as follows :
"Provided that no joint Hindu family or any member of it shall be deemed to be an agriculturist if such family or member is assessed to income-tax, or in the case of a member of such family if the aggregate of the rent and ten times the local rate payable in respect of such member's share and the shares of his male lineal ascendants and descendants in the joint family property and in respect of his self-acquired property, if any, exceeds one thousand rupees."
There is no proof that any of these appellants pays income-tax or that the aggregate of the rent and ten times the local rate payable in respect of the share of any of these appellants in the joint family property and in respect of his self-acquired property exceeds one thousand rupees. In Hardat Ram v. Paras Nath, A.I.R. (35) 1948 P. C. 85 : (73 I. A. 19), it was held by their Lordships of the Judicial Committee that the underlying intention of Section 17, Debt Redemption Act, is to afford personal protection to individual members of the joint family to the extent provided for in that section. When members of a joint Hindu family, who are agriculturists, apply for relief under the Act, the, family is not to be treated as a single unit, i. e., as one agriculturist only for the purposes of Sections 17 and 19, U. P. Debt Redemption Act, but each member is to be treated individually as an agriculturist with respect to his share in the family land for the purposes of those sections. In Bharat Raj v. Parshottam Das, A. I. R. (35) 1948 P. C. 204 : (75 I. A. 177), their Lordships of the Judicial Committee observed that though a member of an undivided Hindu family under the Mitakshara law has no definite share in the family property till partition, it cannot be disputed that he has a joint co-parcenary interest in the ancestral, property along with other coparceners. Where, therefore, a certain land is held by the members of such a joint Hindu family, it is not the joint family as a unit but each undivided member of the family as a separate individual that has to be considered to be an agriculturist for the purpose of qualifying for protection under the terms of Section 17 of the Act. In view of these decisions of the Privy Council, the law laid down in Khushal Kunwar v. Zauki Ram, 1946 A. L. J. 310: (A.I.R. (34) 1947 ALL. 57), in which it was held that the joint family as a whole should be taken as a unit is no longer a good law. As the aggregate of the rent and ten times the local rate payable by each appellant separately in the event of a partition does not exceed Rs. 1000, each of them has the status of an agriculturist by virtue of Clause (e) (ii) of Section 3 of the Act.
4. Having arrived at this conclusion, the next question is whether the advance in the present case amounts to a 'loan.' Sub-section (9) of Section 2 of the Act defines a loan' as follows:
" 'Loan' means an advance in cash or kind made before the first day of June 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction Which" in substance amounts to such advance, but does not include an advance the liability for the repayment of which has, by a contract with the borrower or his heir or successor or by a. sale in execution of a decree, been transferred to another person or an advance by the Central or Provincial Government or by a local authority authorised by the Provincial Government to make advances or by a co-operative society or by a scheduled bank :
Provided that an advance recoverable from an agriculturist or from an agriculturist and other persons jointly shall not be deemed to be a loan for the purposes Of this Act unless such advance was made to an agriculturist or to an agriculturist and other persons jointly."
5. The contention on behalf of the decree-holder-respondent is that, as Rai Achhuta Nand, to whom the advance was originally made, was not an agriculturist, so by virtue of the proviso to Section 2 (9) it is not a 'loan.' The point came up before a Full Bench of this Court in Mt. Ketki Kunwar v. Ram Saroop, 1942 A. L. J. 578 : (A. I. R. (29) 1942 ALL. 390 F.B.). It was held in that case that where the advance is recoverable from the property of an agriculturist the proviso to Section 2 (9), Debt Redemption Act, has no application and the case is governed by the main clause of Section 2 (9). In a case where the advance is recoverable only from the property of an agriculturist it is not necessary that the advance should have been also made to an agriculturist. Their Lordships held that the policy behind the statute was that in a case where the advance was recoverable from the property alone and where the property was liable to be sold, it was sufficient if the claimant possessed the status of an agriculturist on the date when the advance was recoverable, although at the time when the advance was made it was not made to an agriculturist. The correctness of this decision is disputed by the learned counsel for the respondent. The provisions of the definition of the term "loan" have been critically analysed at pp. 582 and 583 of the judgment of the Full Bench. It has been pointed out that the proviso to the definition of "loan" is not applicable to a case where the loan is recoverable from the property of an agriculturist. Now, there can be no denying the fact that the liability of the appellants in the present case is limited by virtue of Section 53, Civil P. C., to the extent of the joint family property in their hands. Their position is that of legal representatives of Rai Achhuta Nand. In this connection I may refer to Rudra Pratap Singh v. Sharda Mahesh Prasad Singh, 23 A. L. J. 467 : (A. I. R. (12) 1925 ALL. 471). The present case is one in which the decree-holder can proceed only against the joint family property of the appellants who are agriculturists. She cannot proceed against the personal effects of the appellants. It will be seen that the definition of 'loan' contemplates advances of the following four kinds: (1) those recoverable from an agriculturist, (2) those recoverable from a workman, (3) those recoverable from an agriculturist or a workman and other persons jointly and (4) those recoverable from the property of an agriculturist. The proviso applies not to all these kinds of advances. It applies only to the following two kinds of advances : (a) those recoverable from an agriculturist and (b) those recoverable from an agriculturist and other persons jointly.
6. The proviso does not apply to advances recoverable from a workman or from the property of an agriculturist or a workman. A proviso is enacted to qualify or create an exception to a general rule or statement. A proviso excepts out of the earlier part of the section which contains it something which but for it would have been within the enacting part. To apply the proviso to Section 2(9) even to advances recoverable from the property of an agriculturist would amount to reading in the proviso Words which do not occur there. The substantive part of Section 2 (9) contemplates four kinds of advances, whereas the proviso mentions only two of them. It is fair to infer from this that the Legislature did this deliberately and did not intend to apply the proviso to advances recoverable from workmen or from the property of agriculturists. I see no good reason to differ from the decision in Ketki Kunwar's case, (1942 A. L. J. 578 : A. I. R. (29) 1942 ALL. 390 F.B.). This decision was given seven years ago and the Courts have been following it. The U. P. Debt Redemption Act is an expiring Act, as it applies only to advances made before 1-6-1940. This is an additional reason why the settled law should not be disturbed.
7. Having arrived at the findings, that by virtue of Section 3(e)(ii) the status of the appellants taken individually is that of an agriculturist as defined in Section 2 (3) and that the advance in the present case is a 'loan' within the meaning of Section 2 (9) of the Act, the next question is whether the decree under execution is a "decree to which this Act applies" within the meaning of the phrase as defined in Section 2(6) of the Act. The definition runs as follows :
" 'Decree to which this Act applies' means a decree passed either before or after the commencement of this Act in a suit to which this Act applies."
8. The phrase "suit to which this Act applies" is defined in Sub-section (17) of Section 2 as follows:
" 'Suit to which this Act applies' means any suit or proceeding relating to a loan ...."
9. Now, the word proceeding" in the above definition includes execution proceedings also. Hence the proceedings which have given rise to this appeal fell within the expression "suit to which this Act applies". It follows that the decree under execution is a decree to which this Act applies. That being so, the provisions of Section 8 of the Act are attracted and the appellants as agriculturists are entitled to apply for the amendment of the decree by reduction, according to the provisions of Sections 9 and 10, of the amount due under it. The protection afforded by Section 17, U. P. Debt Redemption Act, is also available to the appellants.
10. For the reasons given above, I would allow the appeal, set aside the orders passed by the two Courts below and would send the case to the trial Court with a direction to entertain the appellants' prayer for the amendment of the decree under Section 8, U. P. Debt Redemption Act, and to proceed to dispose it of according to law. I would further direct the execution Court to give the appellants the benefit of Section 17 of the Act. In view of the fact that the objectors raised certain frivolous points of fraud and want of consideration of the pronote on the basis of which the decree was passed, I would let the parties bear their costs throughout.
Sapru, J.
11. I have read the judgment of my brother, Bind Bansi Prasad J. and desire to say that I am in entire agreement with it. I have nothing to add to what he has said.
P.L. Bhargava, J.
12. On 25-3-1934, Rai Achutanand executed a promissory note in favour of Sm. Naraini Devi, the respondent in the appeal. She instituted a suit on the basis of the pronote, and, on 5-4-1937, obtained a simple money decree against Achutanand, who is dead and is now represented by his three minor sons, Surendra Nath, Mahendra Nath and Satendra Nath, the appellants before us. The decree was based upon a compromise, in terms whereof the decretal amount, viz., Rs. 3,700, was payable by 1946 in half-yearly instalments, and in the event of default in payment of any three instalments the entire amount remaining due was to become payable at once. Nothing was paid ; and Achutanand died on 1-10-1940. After the death of Achutanand, on 16-10-1940, Naraini Devi applied for execution of the decree against-the appellants by sale of a half share in two-villages, which she described as the property of Achutanand. The execution was, in due course, transferred to the Collector.
13. On 6-4-1942, the appellants filed a petition under Section 47, Civil P. C., before the Collector, in which they raised the following objections : (1) The property sought to be sold was their ancestral property and it was protected from sale ; hence it was not liable to sale in execution of the decree. (2) The pronote on the basis of which the decree was obtained was executed without consideration or for illegal consideration and the decree under execution was obtained by fraud; consequently, they were not liable to pay the decretal amount. (3) The decree should be amended under Sections 8, 9, 10, U. P. Debt Redemption Act (XIII [13] of 1940) as Achutanand as well as the objectors were agriculturists within the meaning of the term as defined in the said Act ; and the execution should proceed after the decree has been amended ; and (4) The instalments could not be paid owing to illness of Achutanand, which resulted in his death, and the time fixed for payment of instalments should be extended. The prayer in the petition was that the execution should proceed after disposal of the objections.
14. The petition was forwarded by the Collector to the civil Court concerned for disposal. It was disposed of by the learned Civil Judge of Azamgarh, who found that the pronote was genuine and had been executed for consideration; that there was no fraud in obtaining the decree; that the property sought to be sold was ancestral property of the objectors, but they were under a pious obligation to pay the debt as it was not tainted with immorality ; that the debt was not a loan as defined in the Debt Redemption Act, consequently, the objectors were not entitled to any relief under the said Act, and that the objectors were not entitled to further instalments.
15. On appeal the District Judge of Azamgarh affirmed the order of, the Civil Judge. It appears from the judgment of the learned District Judge that the allegations of fraud and about the immoral nature of the debt and the plea that the objectors were entitled to relief under the Debt Redemption Act were not pressed and that the only point argued in the appeal before him related to the prayer for further instalments. In the opinion of the learned Judge the objectors were not entitled to any further instalments, as they had already been fixed under the decree and sufficient time was allowed for payment. The objectors have now preferred this appeal.
16. The appeal came up before a Division Bench, which decided to refer it to a larger Bench as "questions of considerable importance involving a proper interpretation of the Full Bench case of Ketki Kunwar v. Ram Saroop, 1942 A. L. J. 578: A.I.R. (29) 1942 ALL. 390 F.B.), were involved therein.
17. Learned counsel for the appellants has contended that the learned Civil Judge was wrong in holding that Achutanand paid more than Rs. 1,000 as land revenue and as such he was not an agriculturist within the meaning of the term as defined in the Debt Redemption Act. He pointed out that whatever amount of land revenue was paid by Achutanand, it was being paid by him on behalf of the joint family consisting of himself and his minor, sons and that his own share of the land revenue did not exceed Rs. 1,000.
18. The fact that Achutanand paid land revenue in excess of Rs. 1,000 was never disputed in either of the Courts below. It appears that after the reference to the Full Bench, the appellants' learned counsel discovered that, in view of the appellants' ages given in the application for execution at least two of them must have been in existence and shared the land revenue which was paid by their father, Achutanand. As the point was raised for the first time in this Court, at the request of the respondent's learned counsel, we allowed the parties am opportunity to produce papers to show the exact amount of land revenue that was being paid by Achutanand at the time of the original advance in 1934. No papers were, however, filed ; and we have to decide the point raised on the materials already on the record.
19. Achutanand and his three sons, the present appellants, formed a joint Hindu family. It appears from the record that the joint family was 'possessed of landed property, which was assessed to land revenue amounting to Rs. 1,400 Having regard to the ages of the appellants, mentioned by the respondent in the application for execution, it must be held that two of them, viz., Surendra Nath and Mahendra Nath, were in existence in the year 1934, when the pronote was executed by Achutanand, while the third appellant, Satendra Nath, was not in existence at the time. It has not been shown that Achutanand paid any rent. It follows, therefore, that at the time when the original advance was made in the year 1934 there was a joint Hindu family consisting of Achutanand and his minor sons, Surendra Nath and Mahendra Nath, and that the amount of land revenue payable by them in respect of the joint family property was Rs. 1,400.
20. According to the provisions contained in Section 3, Clause (e), Sub-clause (ii), Debt Redemption Act, for the purposes of the Act, where the aggregates of the rent and ten times the local rate, if any, payable by a joint Hindu family exceeds one thousand rupees, "a member of such family shall be deemed to be agriculturist only if the aggregate of the rent and ten times the local rate payable in respect of his share and the shares of his male lineal ascendants and descendants in the joint family property does not exceed one thousand rupees."
This is subject to the following proviso:
"Provided that no joint Hindu family or any member of it shall be deemed to be an agriculturist if such family or member is assessed to income-tax, or in the case of a member of such family if the aggregate of the rent and ten times the local rate payable in respect of such member's share and the shares of his male lineal ascendants and descendants in the joint family property and in respect of his self-acquired property, if any, exceeds one thousand rupees:"
Therefore, in order to decide whether Achutanand was an agriculturist, the amount of land revenue payable in respect of his own share and that of the shares of his male lineal ascendants and descendants in the joint family property will have to be taken into account. In other words, the land revenue payable in respect of the shares of his sons will have to be added to the amount of the land revenue of his own share; which means that the entire land revenue payable by the joint family, that is Rs. 1,400 will have to be considered. If that is done, Achutanand could not be treated as an agriculturist.
21. On behalf of the appellants reliance was placed on two decisions of their Lordships of the Privy Council reported in Hardat Ram v. Paras Nath, A.I.R. (35) 1948 P. C. 85: (75 I. A. 19) and in Bharat Rai v. Parshottam Das, A.I.R. (35) 1948 P. C. 204: (75 I. A. 177). In Hardat Ram's case (A.I.R. (35) 1948 P. C. 85 : 75 I. A. 19) the question before their Lordships was:
"When members of a joint Hindu family who are agriculturists against whom decrees have been passed, apply under Section 4, United Provinces Encumbered Estates Act, 1934, for relief under the Act, is the family to be treated as a single unit, i. e.. as one 'agriculturist' only, for the purposes of Sections 17 (1) (a) and 19, U. P. Debt Redemption Act, or is each member to be treated individually as an 'agriculturist' with respect to his share of the family lands, for the purposes of those sections ?"
Their Lordships held that in such a case each member of the family must be treated individually as an "agriculturist" with respect to his share of the family lands for the purposes of Sections 17 (1) (a) and 19, Debt Redemption Act. A similar view was expressed in Bharat Rai's case, (A. I. R. (35) 1948 P. C. 204 : 75 I. A. 177). In those cases it was not held that each member of the family must be treated as an 'agriculturist' irrespective of the fact whether "the aggregate of the rent and ten times the local rate payable in respect of his share and the shares of his male lineal ascendants and descendants in the joint family property"
was more or less than Rs. 1000. The test laid down in Sub-clause (ii) of Clause (e) of Section 3, Debt Redemption Act, has to be applied in determining whether a "particular member of the joint family can or cannot be treated as an, agriculturist.' The principle of personal protection laid down in Hardat Ram's case, (A. I. R. (35) 1948 P. C. 85 : 75 I. A. 19) can be availed of by a member of the joint Hindu family only if he fulfils the qualification mentioned in Section 3 (e) (ii) of the Act.
22. The basis of the notional division to be made for the purpose of applying Section 17 (1), Debt Redemption Act, to individual members of a joint Hindu family was the subject of much debate before their Lordships in Bharat Rai's case, (A. I. R. (35) 1948 P. C. 204 : 75 I. A. 177) wherein it was pointed put that the correct basis would be either (a) that the division should be amongst the members per capita, or (b) that the division should be amongst the members according to the shares they would take in the joint property on partition. Their Lordships were not called upon to decide and did not decide which basis would be in conformity with the provisions contained in Section 3 (e) (ii) of the Act. Section 3 is explanatory; and the language of Sub-clause (ii) of Clause (e) of the said section leaves no room for doubt that the division per stirpes was intended. In the case before us, there was the father and his sons; and in view of the provisions contained in Section 3 (e) (ii) of the Act the total amount of land revenue payable by them had to be taken into account in determining whether each member was or was not an 'agriculturist.'
23. Therefore, the learned Civil Judge was right in holding that Achutanand was not an agriculturist within the meaning of the term defined in the Debt Redemption Act, on the date of the original advance in the year 1934.
24. The next contention put forward on behalf of the appellants was that, in any case, the appellants were agriculturists and as the decretal amount was now recoverable and it was sought to be recovered from their property, in view of the Full Bench decision in Ketki Kunwar v. Ram Saroop, 1942 A. L. J. 578 : (A.I.R. (29) 1942 ALL. 390 F.B.), the debt should have been treated as a 'loan' as defined in Clause (9) of Section 2, Debt Redemption Act, and the appellants should have been allowed the benefit of the provisions contained in Sections 8 to 10 of the said Act, even though the original debtor, Achutanand, was not an agriculturist.
25. "Loan" has been thus defined in Section 2 (9), Debt Redemption Act:
" 'Loan' .means an advance in cash or kind made before the first day of June 1940, recoverable from an agriculturist or a workman or from any such person" (namely an agriculturist or a workman) "and other persons jointly or from the property of an agriculturist or workman 'and ; includes any transaction which in substance amounts to such advance......"
"Provided that an advance recoverable from an agriculturist or from an agriculturist and other persons jointly shall not be deemed to be a loan for the purposes of this Apt unless such advance was made to an agriculturist or to an agriculturist and other persons jointly."
Under Section 3, Debt Redemption Act, the status of the person, who claims the benefit of the provisions of the said Act, at the date of the commencement of the Act or on the date of the institution of the proceedings, as the case may be, has to be considered. In the present case, we have to see whether the appellants were "agriculturists," as defined in the Act, on the date of the institution of the proceedings out of which this appeal has arisen. On the relevant date, the appellants formed a joint Hindu family, and the land revenue payable by the family was Rs. 1400. There being no male lineal ascendant or descendant and the land revenue payable in respect of his share being Rs. 466-10-8 only, each of the appellants must be deemed to be an "agriculturist." Consequently, on the date of the institution of the said proceedings the appellants were agriculturists.
26. Admittedly, the debt in question is not recoverable from the appellants personally; and the important question, which arises for consideration, is whether it is recoverable from their property.
27. When the advance was made to Achutanand on the basis of a pronote, it was payable by him on demand and, in the event of his failure to pay on demand, it was recoverable from him personally by a suit instituted for the purpose. After the advance merged into a decree of Court, obtained against Achutanand, the decretal amount became recoverable from his person as well as from his property in execution of the decree. Up to the date of Achutanand's death the position of the advance as regards its recoverability remained the same. After Achutanand's death the position was this : Under Section 50, Civil P. C., the decree could be executed against the legal representative of the deceased and the liability of the, legal representative would have been limited only to the extent of the property of the deceased, which had come to his hands and bad not been duly disposed of. Section 53 of the Code defines the liability of the ancestral property in the hands of the legal representative of the deceased, who was governed by Hindu law. It was neither alleged nor proved that the debt in question was tainted with immorality. Consequently, the appellants were under a pious obligation to pay the debt. Therefore, after the death of Achutanand the decretal amount was recoverable from his assets or the ancestral property in the hands of the appellants, which was to be deemed the property of the deceased liable for the payment of the debt.
28. It is not disputed that after the death of Achutanand, under the Hindu law, the appellants became owners of the joint family property, which at the same time became liable for payment of the debt in question; and it is true that the decree-holder was entitled to execute his decree against the property as the property of the deceased debtor. It has, however, been contended that even if the property was to be treated as the property of Achutanand for the satisfaction of the debt, it remained the property of the appellants, and as the debt is recoverable from that property it follows that the debt is recoverable from the property of agriculturists. There is much force in this contention. The appellants having become owners of the property, it would be immaterial, as far as they are concerned, whether the property is treated as the property of the deceased. The debt has, undoubtedly, become 'recoverable from their property and it is sought to be recovered from it. It must, therefore, be held that the debt is recoverable from the property of the agriculturists.
29. In Ketki Kunwar's case, (1942 A. L. J. 578 : A. I. R. (29) 1942 ALL. 390 F. B.) the facts were these : In 1920 Kanhai Lal had borrowed a certain sum of money and executed a simple mortgage in favour of Bhairon Prasad. Kanhai Lal died leaving two sons, Ram Saroop and Kirshna Murari Lal, and a widow named Ketki Kunwar. Bhairon Prasad also died leaying two sons. In 1925, there was a partition between the sons of Kanhai Lal and with the consent of the sons of the mortgagee the liability under the mortgage of 1920 was divided half and half between them. Each of them discharged the said liability by executing a fresh mortgage. Ketki Kunwar had joined her son, Krishna Murari Lal, in executing the new mortgage, which was executed on 21-7-1928. In a suit on the basis of this mortgage a decree for sale of the property was made on 19-4-1940. When the suit on the mortgage was instituted time had run out for enforcing the personal liability against Ketki Kunwar and Krishna Murari Lal and the mortgage money could only be recovered from the sale of the property. In 1941, the decree was sought to be executed by sale of the property. Therefore, Ketki Kunwar and Krishna Murari Lal filed an application under Section 8, Debt Redemption Act for amendment of the decree on the allegation that Kanhai Lal was an agriculturist when the mortgage of 1920 was executed and they them selves were agriculturists when the mortgage of 1928 was executed and had been agriculturists at all material times and that they were entitled to the benefit of the provisions of the said Act. It was found that Kanhai Lal was not an agriculturist, but both Ketki Kunwar and Krishna Murari Lal were agriculturists on the date of the mortgage of 1928. The trial Court took the view that in order to obtain the benefit claimed the appellants must prove that the person who received the original loan, i. e., Kanhai Lal was an agriculturist and as that was not established the application was rejected. On appeal it was held by the Full Bench that the mortgage of 1928 was a renewed loan and as such a transaction which, in sub-stance, amounts to an advance within the meaning of Section 2 (e), U. P. Debt Redemption Act; and that as Ketki Kunwar and Krishna Murari Lal were both agriculturists at the time when the renewed loan was taken they were entitled to apply-under Section 8, Debt Redemption Act.
30. In the circumstances stated above, it was further held that the effect of Section 2 (9), Debt Redemption Act, "is that in case where an advance is recoverable from an agriculturist or from an agriculturist and other persons jointly, under the proviso, advance must be recoverable from an agriculturist and must have been made also to an agriculturist. But where the advance is recoverable from a workman or recoverable from the property of an agriculturist or workman, the proviso has no application and the case is governed by the main clause of Section 2,(9)."
It was also held that "the advance which is recoverable from the property of an agriculturist solely and not from his person is a loan within the meaning of Section 2 (9) and is unaffected by the proviso to Section 2 (9)."
and that "the meaning of Section 2 (9) is that in cases where advance is recoverable both from the person and the, property of an agriculturist in order to take benefit of Section 8, U. P. Debt Redemption Act, it must be shown that the claimant was an agriculturist both at the time when the advance was recoverable and when the advance was made."
It was further observed :
'The policy behind the statute seems to be that in case where the advance is recoverable from property alone and where the property is liable to be sold it is sufficient if the claimant possesses the status of an agriculturist or workman on the date when the advance is recoverable although at the time when the advance was made, it was not made to an agriculturist or a workman."
31. In view of the finding that the debt is recoverable from the property of agriculturists, the principle laid down in Ketki Kunwar's case, (1942 A. L. J. 578 . A. I. R. (29) 1942 ALL. 390 F. B.), applies to the present case; and there is no sufficient reason to doubt the soundness of that principle,
32. In my opinion, therefore, the decretal amount sought to be recovered from the appellants should have been treated as a "loan" within the meaning of the term as defined in Section 2 (9), Debt Redemption Act, and, the appellants should have been allowed the benefit of the provisions of the said Act.
33. The last contention put forward on behalf of the appellants was that the pronote-on the basis of which the decree was obtained was executed without consideration or for illegal consideration. The trial Court, however, found that the pronote was genuine and had been executed for consideration. This finding was not challenged in the lower appellate Court; as such it has become final and cannot, now be challenged in second appeal.
34. I, therefore, concur in the order proposed to be passed in the appeal by my learned brother, Bind Basni Prasad J.
35. By the Court. -- We allow the appeal, set aside the orders passed by the two Courts below and remand the case to the trial Court with a direction to entertain the appellants prayer for the amendment of the decree under Section 8, U. P. Debt Redemption Act, and to proceed to dispose it of according to law. We further direct the execution Court to give appellants the benefit of Section 17 of the abovementioned Act.
36. Parties will bear their costs.