vil Appeal No 64 of 1951
On appeal from the Judgment and 646 Decree dated the 16th April
1948 of the High Court of Judicature at Allahabad Malik CJ and Prasad J in First Appeal No 358 of 1943 arising out of the ent and Decree dated the 22nd February 1943 Judgment and Decree dated the 22nd February 1943 of the Court of the Additional Civil Judge Benares in Original Suit No 33 of 1938
Gopi Nath Kunzru K B Asthana with him the appel lants
Krishna Shankar for the respondents
April 25
The judgment of the Court was delivered by DAs J
This appeal arises out of an application by five out of ten judgment debtors made under section 8 of the UP Debt Redemption Act No of 1940 for ascertaining the amount due by them in accordance with the provisions of sections 9 and 10 of that Act and for amending the decree passed on March 31 1939 by the Additional Civil Judge Banaras in OS No 33 of 1938
The facts materi al for the purposes of this appeal may now be briefly stated
By a mortgage deed executed on June 22 1922 Madho Ram Sita Ram Jai Ram aud 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 8000 advanced on that date by a cheque together with interest thereon at 12 annas per cent per mensem with quar terly rests
On July 28 1931 the said mortgagors and their sons executed a mortgage over the same properties in favour of Kothi Kamta Nathji Vishwanathji for the due repayment of Rs 3000 with interest thereon at twelve annas per cent per mensem with quarterly rests
It is recited in the deed that the sum of Rs 8000 was advanced on this date by a cheque and that the amount was utilised in paying up the amount due under the earlier 647 mortgage deed to Damodarji proprietor of Kothi Shivanath Vishwanath
In 1935 the UP Agriculturists  Relief Act No XXVII of 1934 came into force
On May 1938 Girjadharji son of Damodarji and Murlidharji minor son of Gangadharji who was another son of Damodarji filed suit No 33 of 1938 in the Court of the Additional Civil Judge Banaras against the mortgagors and their sons for the recovery Rs 9477 2 0 due as principal and interest up to date of suit and for further interest under the mortgage deed of July 28 1931
It appears from the judgment of the High Court under appeal that in their written statement the mortgagors claimed the benefit of the UP Agriculturists  Relief Act No XXVII of 1934
The plaintiffs contended that the mortgagors were members of a joint Hindu family and as Sita Ram one of the mortgagors was assessed to income tax the mortgagors were not agriculturists as defined in section 2 2 of that Act and therefore could not claim the benefit conferred on the agriculturists by that Act
The trial Court by its judgment dated March 31 1939 held that though Sita Ram was assessed to incometax for the year 1931 32 the amount of such in cometax did not exceed the amount of cess payable on the land held by him and consequently the second proviso to section 2 2 did not apply to him and he was therefore an agriculturist and as the other mortgagors were also agricul turists all of them were entitled to the benefits under the Act
Accordingly after scaling down the interest a sum of Rs 9497 14 1 was declared to be due for principal interest and costs up to March 31 1939 and a preliminary mortgage decree for sale was passed in that suit
In 1940 the UP Debt Redemption Act No XIII of 1940 came into force
On April 11 1942 five of the judgment debtors made an application under section 8 of this Act before the Additional Civil Judge Banaras who passed the decree
In the petition it was stated that the debt was actually advanced in 1922 that the petitioners were agri culturists within 648 the meaning of Act XIII of 1940 that the decreeholders can only get interest at the reduced rate of Rs 4 8 0 per cent
per annum from 1922 and that after adjustment of accounts nothing will be found outstanding against the petitioners
The prayer was that an account of the money lending business be made from the beginning of 1922 and the decree in suit No 33 of 1938 be modified by reducing the amount due thereunder
The decree holders filed a petition of objection asserting inter alia that the petitioners were by no means agriculturists that they and the respond ents Nos 3 to 7 were members of a joint Hindu family at the time of the execution of the mortgage deed of July 28 1931 that Sita Ram used to pay income tax at the date of the mortgage in suit and paid even at the time of the applica tion that all the members of the petitioners  family were not agriculturists within the meaning of the Act and were therefore not entitled to the benefits thereof that the debt advanced under the mortgage deed of July 28 1931 was not a loan as defined in the Act and therefore the Act did not apply
It will be noticed that although the judg ment debtors applicants specifically prayed for the accounts being taken from 1922 when the loan was said to have been actually advanced the decree holders in their petition of objection did not contest that position
At the hearing of the application before the Additional Civil Judge the learned pleader for the decree holders admitted that with the exception of Sita Ram the remaining judgment debtors were agriculturists under Act No XIII of 1940 but that as Sita Ram was a party to the mortgage in suit they were not entitled to the benefit of the Act
Two witnesses namely Suraj Mani Tripathi and Sita Ram were examined on behalf of the judgment debtors applicants
Sita Ram stated that since 1907 he had been a teacher in Harish Chandra Intermediate College of Banaras that in 1930 his salary was Rs 90 per month that since February 1932 to 1936 he paid incometax and that after that he paid no in come tax
649 His evidence was corroborated by Suraj Mani Tripathi who was the Accountant of the College from 1930 to 1042
Referring to the College Acquittance Roll Suraj Mani Tripathi deposed that the pay of Sita Ram was Rs 90 per month throughout 1930 that in 1930 no income tax was levied that in 1931 also his salary was Rs 90 per month and that no income tax was deducted in 1931 too that the first deduction of in come tax from his salary was made in February 1932
No rebutting evidence was adduced by the decree holders on the hearing of the application under section 8 of the Act of 1940
The income tax assessment form filed during the trial of the mortgage suit and marked as exhibits is dated Febru ary 9 1933 and shows that on that date Sita Ram was as sessed at Rs 1 14 0 as income tax on Rs 180 for the year 1931 32
By his judgment delivered on February 22 1943 the Additional Civil Judge found that Sita Ram was not assessed to income tax either at the date of the application under section 8 or at the date of the mortgage of 1931 and there fore held that the applicants were agriculturists and that the case related to a loan as defined in Act XIII of 1940
He then went on to discuss the question whether the account should be reopened from June 2 1922 when the earlier mortgage was executed or from July 28 1931 when the mort gage in suit was executed
The decree holders who did not adduce any evidence on the hearing of the application evi dently relied on the evidence adduced in suit No 33 of 1938
After discussing that evidence the learned Judge came to the conclusion that so far as the judgment debtors were concerned the mortgagees in the two mortgages were one and the same
He adversely commented on the non production of the books of account by the decree holders
Re opening the accounts from June 2 1922 the learned Judge concluded that the whole of the principal and interest payable accord ing to the Act had been fully discharged and that nothing remained due by the judgmentdebtors under the decree in suit No 33 of 1938
He 650 accordingly declared that the decree stood discharged in full and directed a note to that effect to be made in the Register of Suits
The decree holders having appealed to the High Court a Division Bench B Mallik CJ and Bind Basni Prasad J by its judgment delivered on April 16 1948 held that the question whether Sita Ram was or was not an agriculturist on July 28 1931 was not material as it was not denied that all the judgment debtors were agriculturists on the date of suit
Reference was made by the learned Judges to section 21 and it was stated that by reason of that section the mortgage amount could be recovered only from the mortgaged property and not personally from the mortgagors and accord ingly the proviso to the definition of loan in section 2 9 of the Act had no application and it was therefore not necessary to show that the borrowers were agriculturists at the date when the advance was made and that as the judgment debtors were admittedly agriculturists at the date of the suit the case was fully covered by the Full Bench decision of that High Court in Ketki Kunwar vs Ram Saroop 1
The High Court therefore dismissed the appeal on this point alone
The question whether the account should be reopened from 1922 or from 1931 was not raised by the decree holders at all he decree holders have now come up on appeal before us on a certificate granted by the High Court under section 110 of the Code of Civil Procedure
Sri GN Kunzru appearing in support of this appeal has strongly questioned the correctness of the Full Bench deci sion relied on by the High Court and the interpretation put by the High Court on section 21 and section 29 of the Act
As we think this appeal can be decided on a simpler ground we do not consider it necessary on this occasion to express any opinion on either of these questions which are by no means free from doubt
1 ILR 1943 All 35 AIR 1942 All
390 1942 A LJ 578
651 The present application has been made under section 8 of the U P Debt Redemption Act 1940 subsection 1 of which omitting the proviso runs as  follows Notwithstanding the provisions of any decree or of any law for the time being in force an agriculturist or a workman liable to pay the amount due under a decree to which this Act applies passed before the commencement of this Act may apply to the Civil Court which passed the decree or to which the execution of the decree has been transferred for the amendment of the decree by reduction according to the provisions of this Act of the amount due under it and on receipt of such application the Court shall after notice to the opposite party calculate the amount due from the appli cant in accordance with the provisions of sections 9 and 10 and shall amend the decree accordingly
 It is clear from the wording of the sub section that there are three pre requisites for exercise of the right conferred by it namely 1 that the application must be by an agriculturist and 2that that agriculturist must be liable to pay the amount due under a decree to which this Act applies and 3 that that decree was passed before the commencement of this Act
That the judgment debtors appli cants were agriculturists at the date when suit No 33 of 1938 was filed and also in 1942 when the application under section 8 was made is conceded by Sri GN Kunzru
The decree in that suit was passed on March 31 1939 which was well before the commencement of the Act
The only question that remains is whether the amount was due under a decree to which the Act applies
Under section 26 of the Act the phrase decree to which this Act applies means a decree passed before or after the commencement of this Act in a suit to which this Act applies
Section 217 defines the phrase suit to which this Act applies as meaning any suit or proceeding relating to a loan
The question then arises was the decree under which the judgment debtors applicants are liable passed in a suit 652 relating to a loan  Loan is thus defined in sec tion 29 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 sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Government to make advances or by a co operative society or by a schedule bank Provided that an advance recoverable from an agricul turist 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 In order to be a loan the advance must be recoverable from an agriculturist
The word recoverable seems prima facie to indicate that the crucial point of time is when the advance becomes recover able ie when the amount advanced becomes or falls due
Under the mortgage of 1931 the date of redemption was 6 years from the date of execution ie in July 1937
Sri Kunzru concedes that Sita Ram was not as sessed to income taxsince 1936
Assuming but without deciding that the proviso to section 2 9 applies and that in order to be a loan it must be shown that the advance was made to one who at the date of the advance was an agriculturist as defined in section 23 of the Act the question has yet to be answered namely had Sita Ram ceased to be an agriculturist by reason of clause b of the provi so to section 23 that is to say by reason of his being assessed to income tax on July 28 1931
According to the evidence of Surai Mani Tripathi and Sita Ram 653 income tax was first deducted at the source in the month of February 1932 by the College authorities and the actual assessment was made on February 9 1933
Therefore Sita Ram was not assessed to incometax on July 28
It is not disputed that the taxable minimum was reduced from Rs 2000 perannum to Rs 1000 per annum by the Indian Finance Supplementary  ExtendingAct 1931 which was enacted on November 26 1931
Therefore at the date of the advance ie on July 28 1931 Sita Ram Whose salary was below Rs 2000 per annum was not only not actually assessed to in come tax but was not even liable to such assessment
The evidence of Suraj Mani Tripathi shows that the first deduc tion of incometax out of the salary was in the month of February 1932 and the income tax assessment form for 1931 32 ExS shows that tax was assessed on Rs 180 which was evidently salary for February and March 1932 being the last two months of the assessment year
The position therefore is that Sita Ram was not assessed to income tax at the date of the advance in 1931 or on the due date under the deed ie in July 1937 or on the date of suit in 1938 or on the date of the application under section 8 in 1942
It consequently follows that he was an agriculturist on all these dates
The other judgment debtors were admittedly agriculturists
Therefore the application under section 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies ie under a decree passed in a suit relating to a loan as defined by section 29
The Courts below therefore were right in their conclusion that the judgment debtors applicants were entitled to the benefit of the Act
Sri GN Kunzru finally submitted that in any case the accounts could not be taken from 1922 for the mortgagees under the two mortgages were different
We have already pointed out that this point was not specifically taken in the decree holders  petition of objection
The trial Court held as a fact that so far as the judgment debtors were concerned the 654 mortgagees were the same in both the mortgages
Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922 that ground was not specifi cally urged before the High Court
The determination of that question must necessarily involve an investigation into facts
We do not think in the absence of a plea in this behalfin the decree holders  petition of objection and also in view of their failure and neglect to raise this question before the High Court it will be right for this final court of appeal at this stage and in the circumstances of this case to permit the appellants to raise this question of fact
The result therefore is that this appeal must stand dis missed with costs
Appeal dismissed


Summary:
The General Manager of the appellant Mills ordered the transfer of four workmen from the appellant mill to a new mill which had been purchased subsequently
The only connection between the two mills was the identity of ownership and but for it one had nothing to do with the other
The concerned workmen protested to the said order of transfer and did not acceed to the request thereupon they were served with notice for disobedience of standing orders and were called upon for explanation which the workmen did and thereafter they were dismissed from service
The Labour Appellate Tribunal found that the management had no right to transfer the workmen to the new factory and therefore the order dismissing them was illegal
The appellants came up by special leave before the Supreme Court and contended that the right to transfer an employee by an employer from one of his concerns to another is implicit in every contract of service
The question is whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of the employment
Held that apart from any statutory provision the right of an employee and an employer are governed by the terms of contracts between them or by the terms necessarily implied therefrom but in the absence of an express agreement between the employer and employees it cannot necessarily be implied that the employer has the right to transfer the employee to any of its concerns in any place and that the employee has a duty to join the concern to which he may be transferred
In the instant case it was not a condition of service of employment of the concerned workmen either express or implied that the  employer had the right to transfer them to a new concern started by the employer subsequent to the date of the employment
Alexandre Bouzourou vs The Ottoman Bank AIR 1930 PC 118 Mary Anamalai Plantation Workers  Union vs Selali arai Estate 1956 ILLJ 243 and Bata Shoe Company Ltd vs Ali Hasan 1956 ILLJ 278 discussed