JUDGMENT [ENTITY], J.
1. The judgment debtor has preferred this appeal against the order dated 19th August, 1975, passed by the learned District Judge, Tonk, in [CASE NUMBER], in execution [CASE NUMBER].
2. There was a litigation between the judgment debtor and the decree bolder. Compromise decree was passed. It was agreed upon that the decree holder will get interest from the judgment debtor at rate of 1.50 per cent per month from the date of the decree till the date of realisation.
3. Objection petition was filed by a present judgment debtor in an execution petition & it was submitted that the [ACT], applied. It was further submitted that the provisions of [SECTION] & [SECTION] of the said Act, come into play and the decree which has been passed by the court below is a nullity, as it has been passed against the provisions of the [ACT]. It was also submitted that more than Rs. 85,000/- have been said.
4. The admitted position in this case is that the amount was advanced by the decree-holder to the judgment debtor on 8-9-1962, i e., prior to the coming into force of the [ACT], which actually came into force on 1st October, 1965. Thus, the loan advanced was the loan which was advanced prior to the coming into force of the Act, 1963. The admitted position is that [ENTITY], judgment debtor is the proprietor of the 'Raj Talkies'.
5. Mr. [ENTITY], learned Counsel for the appellant submitted that [SECTION], provides that not with standing anything contained in any law for the time being in force no agreement between a money lender and a debtor for the payment of interest exceeding to the maximum rate fixed by the State Government under [SECTION] shall be valid and no court shall in any suit to which this Act applies award interest exceeding the said rate. The contention of Mr. [ENTITY], learned Counsel for the appellant is that the rate of interest provided in the decree is in violation of the provisions of the Act particularly, [SECTION], [SECTION], and as such the decree is a nullity and cannot be enforced. Mr. [ENTITY], learned Counsel for the appellant also invited my attention to [SECTION] of the Act, and submitted that the creditor cannot be allowed to recover more than double the amount of loan. Mr. [ENTITY], learned Counsel for the appellant further submits that it is nothing but the application of the principle Damdupat of the Hindu Law, that no amount double than the amount advanced can be recovered.
6. Mr. [ENTITY], learned Counsel for the decree-holder firm, submitted that the provisions of [SECTION], [SECTION] apply in the instant case. He submits that Clause (13A), of the [ACT], applies only in the case of loan advanced after coming into force of the Act. He further submits that under [SECTION] of the Act, does not apply to the traders and the judgment debtor was a trader and as such he cannot get the benefit of provisions of the Act. The third contention of Mr. [ENTITY], is that there was no relationship of a creditor and a debtor but there was a relationship of a judgment debtor and a decree-holder and as such the Act, does not apply.
7. I have heard the rival contentions of both the parties. [ACT], is prospective and not retrospective in its operation. This court in the case of [PRECEDENT], has dealt with the provisions of [SECTION] Clause (2) and (3) of the Act, held in para 12 of the judgment as under:
Then again, there is another hurdle in the petitioner's way. The transaction in question admittedly took place before the [ACT], came into force, and a serious question arises whether [SECTION] would have application also to those transactions which had been entered into prior to the coming into force of the Act. In this connection, I draw attention to [SECTION] Sub-section (15) of the Act, which provides the meaning of the phrase 'Suit to which this Act, applies'. It may be useful to reproduce [SECTION]:
"(15)'Suit to which this Act, (a) for the recovery of a applies means any suit or proceedings: loan made after the date on which this Act, comes into force:
Thus, the definition of the phrase 'suit to which this Act, applies makes it clear beyond all doubt that [SECTION] cannot apply to this case, as the transaction was made before the date on which this Act, came into force. Learned Counsel for the petitioner, however, relied on [SECTION] and argued that according to the Sub-section, no money lender shall charge or receive from a debtor interest at rate exceeding the maximum rate fixed by the State Government under Sub-section (1) and submits that even though the court may not be able to give relief to the defendant in respect of transactions entered into before the coming into force of the Act, there is a statutory bar prohibiting a money lender from realizing interest at rate exceeding the maximum rate. I am afraid, this submission is devoid of force and the only reasonable interpretation that can be put on Sub-section (2) also is that no money lender shall charge or receive interest more than that fixed by the State Government only in respect of transaction which have been entered into after the date of the coming into force of this Act ft is a fundamental rule of interpretation of statutes that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. A statute is not to be construed to have a greater retrospective operation than its language renders necessary. There is nothing in [SECTION] of the Act, to show that the legislature intended that the maximum rate fixed by the State Government, under [SECTION] shall also apply to those transactions which had been entered into prior to the coming of the Act. It is pertinent to refer to [SECTION] of the [ACT], which provides as follows:
(1)"The State Government may from time Sub-[SECTION] shall be valid to time by notification in the Official and no court shall in any Gazette fix the maximum rates of interest suit to which this act, for any local area or class of business of applies award interest money lending in respect of secured and exceeding the said rates. unsecured loans. (2) Not with standing any thing contained in (3) If any money lender any law for the time being in force, no charges or receives from agreement between a money lender and a a debtor interest at a rate debtor for payment of interest at exceeding the maximum exceeding the maximum rates fixed by rate fixed by the State the State Government. Government under sub- [SECTION], he shall for the purpose of [SECTION] be deemed to have contra- vened the provisions of this Act.
While interpreting the provisions of [SECTION] of the aforesaid [ACT], it was held by the learned Judge, that [SECTION] has not been made retrospective and does not apply to transactions entered into before the Act, came force. Insertion of Sub-section (2) in [SECTION] in the [ACT], would in my opinion, make no difference and the same meaning has to be given to Sub-section (2) also otherwise there would be clear discrepancy between Sub-section (2) also and Sub-section (3) I, therefore, hold that [SECTION] of the [ACT], has not been made retrospective and does not apply to transactions entered into before the Act, came into force. It was not intended by the legislature that the rate of interest agreed upon in such a transaction should not be awarded merely because it was in excess of the rates fixed under [SECTION], [SECTION] Thus, there is no force in the contention of the learned Counsel for the petitioner.
8. I agree with the view taken by this court in the case of [PRECEDENT] (supra) by the then Hon'bie Chief Justice [ENTITY]. Mr. [ENTITY], learned Counsel for the appellant does not oppose the proposition of law laid-down by this court but he has taken a different stand in alternative. He submits that on 23rd August, 1969, the compromise was entered into between the parties and it was submitted before the court in pursuance of the compromise dated 23rd August, 1969, the compromise decree was passed on 8th September, 1969. He submits that the compromise decree is an agreement and it should be treated as an agreement for all purposes particularly, in the matter of applications of [SECTION] and [SECTION] of the Act, 1953. No doubt, the compromise decree is passed on the basis of mutual agreement entered into between the parties, the agreement is given the shape of a decree by the order of the court and it merges in the order of the court and the shape of the decree of the court. It is the duty of the court to see that a decree is not passed in violation of the provisions of the law and failure of the court, may some times lead to the position that the compromise decree is a nullity. In the instant case, the whole case of the party is based on the facts firstly, whether the judgment debtor can get any relief under the provisions of the Act, or not. If he is a trader then he cannot get the advantage of the provisions of the [ACT]. The second question which also needs the decision of the court is about the dealings of the parties including the payments made from time to time. In such circumstances, if the question involved is based purely on the disputed questions of fact then the decree particularly, compromise decree if so, does not become a nullity and the law does not provide for giving an opportunity by further evidence to prove that there was a possibility of succeeding on the ground of money lending licence which has been waived by the judgment debtor. Then it should be presumed for all purposes that the judgment debtor who was the defendant accepted the position that the judgment debtor cannot get the benefit of the [ACT]. For these reasons, I do not find any force in the submissions made by the learned Counsel for the appellant on this point.
9. [SECTION], Clause (16) of the [ACT], reads as under:
[SECTION] Clause (16):
'Trader' means a person who in the regular course of business buys and sells goods or other property, whether movable or immovable, & includes:
(a) a whole-sale or retail merchant;
(b) a commission agent;
(c) a broker;
(d) a manufacturer;
(e) a contractor; and
(f) a factory owner;
10. The word 'trader' as used in [SECTION] that 'trader' means a person who in regular course of business buys and sales goods for other property, whether movable or immovable. There after some illustration have been given in [SECTION]. The word 'trader' means (1) exchange of goods for goods or goods for money. (2) Any business carried on with a view to profit whether manual or mercantile as distinguished from the liberal arts or learned professions and from a categorical; and business means an enterprise which is an occupation as distinguished from pleasure. In Sub-clause ()6), the word 'regular course of business' has been used to show that the trade is carried out by the trader with a view that he may get the profit and is not carried out for pleasure but it is always carried out with a view to get profit. We will have to consider the word 'trade' business, commerce, profession, and other allied words which are generally used.
11. 'Trade' in its primary meaning is the exchanging of the goods. The meaning of trade is any business carried out on with a view to profit. Business is a quarter term and not synonymous with trade and practically anything which is in-occupation as distinguished from a pleasure. The word 'business' is a quarter term than the trade and it includes every occupation.
12. The word 'trade' or 'business' or 'commerce' should be read in their quarter terms amplitudes respectively. Sometimes all the words may fall within the purview of commenting facts and sometimes distinguishing facts may give interpretation in a different way. Clause (16) further provides that in the regular course of business there should be dealing of sale and purchase of goods or other properties.
13. Cinema, Exhibition is a business but according to Mr. [ENTITY], learned Counsel for appellant, nothing is sold there but tickets are issued only for the purpose of giving a licence to a party to enter into the picture-hall and to enjoy for a particular period by seeing the film. Mr. [ENTITY], learned Counsel for the appellant submits that there should be an exchange for goods for money. He submits that in the case of exhibition of films, tickets cannot be said to be the exchange of goods for money. It was also argued by Mr. [ENTITY], learned Counsel for the appellant, that the ticket which is issued is not a property.
14. Mr. [ENTITY], learned Counsel for the respondent has cited before me the case of [PRECEDENT] . Their Lordships of the Supreme Courts interpreted the Meaning of the word 'property' used in [SECTION] of the [ACT]. Their Lordships have held as under:
9. Then the question is whether that business can be held to be property within [SECTION] of the Act. Now 'property' is a term of the widest import and subject to any limitation for qualification which the context might require, it signifies every possible interest which a person can acquire, hold & enjoy Business would undoubtedly be the property, unless there is something to the contrary in the enactment. [SECTION] of the Act, under which exemption is claimed, runs as follows:
4. (3) Any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them. (i) Any income derived from property held under trust or other legal obligation wholly for religious or charitable purpose, and in the grace of property so held in part only for such purposes, the income applied, or finally set apart for application there to.
Now, confinding ourselves solely to the language of [SECTION], there is nothing in it which restricts in any manner the normal and accepted meaning of the word 'property' and excludes business from its connotation."
(13) It is next contended for the respondent that even if business could in general be held to be property within [SECTION], managing agency cannot be so regarded because having regard to [SECTION] & [SECTION] of the [ACT], it is merely an office which consists in performance of service and discharge of certain obligations, and that could not be regarded as property, which could be the subject matter of trust.
We are unable to accede to this contention. In [PRECEDENT] , and [PRECEDENT] , even an office of trusteeship was held to be property especially when emoluments were attached to it, and that must a fortiori be the position in the case of office of managing agency, which is clearly one of profits and even alienable under certain circumstances.
The office requires no doubt the performance of service, but there is no antithesis between service and business, which, involve the performance of services, such as insurance and commission agency. The true test is whether the services are a regular source of income. And if managing agency is business as was held in [PRECEDENT], then there is no reason why it should not be property for purposes of [SECTION] of the Act.
Nor it is an accurate statement of the true position to describe trust of the managing agency as a trust of an obligation. It is in truth a trust of an obligation. It is in it certain obligations, and in law, there is no objection to creating a trust over property burdened with obligations though if it is onerous by reason of such obligations the trustee be entitled to disclaim it.
15. Their Lordships held that the managing agency is a properly for the purpose of [SECTION] of the [ACT]. In the insant case, under [SECTION] broker has been included as a trader. Broker does not sale or purchase any property on his own behalf. He does not act with a view to get profit out of the transaction. Broker only gets a commission in a transaction which is done by the seller and the purchaser. Thus, the view to get a profit is not necessary for the purpose of interpreting the definition of word 'trader' as used in [SECTION]. Similarly, the broker does not possess any properly he only assists the parties in the transaction. We will have also to see the explanation of Clause (16) which reads as under:
Explanation: For the purposes of Clause (16) an 'artisan' means a person who does not employ more than ten workers in manufacturing process on any one day of the twelve months immediately preceding.
16. 'Artisan' is not a trader. Property is a term of widest import and will have to be interpreted in the context of the legislation. Some times it signifies every possible interest which a person can hold acquire and enjoy. I have already discussed the case of [PRECEDENT], in which their Lordships have held that the office of the Managing Agency no doubt requires the performance of services; but there is no antithesis between the service & the business which involves the performance of service such as insurance and commission agencies. From the above observations made by their Lordships insurance is a business carried out by the agent of the insurance company and the agents are the business men. Their Lordship have also held that the agency is a business. Their Lordship have further used the word 'enjoy' in para 9 of their judgment while interpreting the word 'property' in the instant case the tickets are issued for the purpose of allowing a person who wants to see the film to enter into the picture hall and to occupy the seat and to enjoy the exhibition of the film. The licence which is granted by the issuance of the ticket for the purpose of enjoying the exhibition of the film may fall for the limited purpose of sec 2 [SECTION] within the purview of the definition of the property. A person who goes for seeing the film purchases the ticket which is issued by the exhibitor and thus, there is a transaction in which the ticket is exchanged for the money value and ticket takes the shape of property exchanged in that case for the limited purpose. Ticket becomes the property for a limited qualified purpose with a limited right and holder of the ticket there by enters into the picture hall occupies the seat and enjoys picture. The interpretation is necessary for the purpose of interpreting the word 'trader' as used in [SECTION], [SECTION] of the Act. For the reasons mentioned above. I hold that the judgment debtor is a trader under [SECTION] of the Act, and as such he is not entitled to get the benefit of provisions of [ACT]. Such clause forbids the benefit of this Act, to the traders.
17. The third question which needs determination by me is also of very high import in the instant case. The relationship of the creditor and the debtors cases as the decree has been passed by this court. New statutory relationship is created that of the decree holder and judgment debtor. In a normal course a person who has entered into a contract as a debtor will have to pay interest at rate specified in the contract. [SECTION] of the [ACT] provides that at the time of passing of the decree, the court shall award further interest at such rate not exceeding 6% per-annum. Thus, the court could have granted interest at a higher rate upto date of the institution of the suit in accordance with the terms of the contract but after the passing of the decree the court cannot award future interest exceeding 6 present whether may be the terms of the contract. Thus, the award of the future interest exceeding 6% is prohibited under [SECTION] of the [ACT] unless there is a contract to the contrary at the time of passing compromise decree. In such circumstances, the new-relationship is created at the time of passing of the decree i.e 'he relationship of the judgment debtor and the decree holder and the old relationship of the creditor and the debtor comes to an end.
18. [SECTION] of the Act, further provides that not with standing anything contained in the law for the time being inforce, the court shall in any suit to which this Act, applies will not re-open any transaction or any account already taken between the parties. In taking this view in the case of [PRECEDENT]. Their Lordships held as under:
(b) Bengal Money Lender Act (10 of 1949) [SECTION] and [SECTION] scope and applicability of [SECTION] and [SECTION] deal with the assignment of loans, where the relation of lender and borrower still exists, that is, while the contract is still executory. They do not apply where there has been a judgment. The contract is there marked in the judgment and the relationship between the parties that of judgment creditor and judgment debtor and on longer date of lender and borrower: (36) 23 A AIR 936 PC 63 Rel. on.
19. Thus, I hold that the old relationship between the creditor and the debtor has come to an end between the parties and the new-relationship between the judgment debtor and the decree-holder is created. For the reasons mentioned above I am of the view that the provisions of the [ACT], do not apply in the case of present appellant who is the proprietor of [ENTITY] and is running the same.
20. In the result, the appeal is dismissed without any order as to costs.