Case: Joshi Girjadharji And Another Vs. Lachmanji Panth And Others

and (3) that that decree was passed before the commencement of this Act. That the judgment-debtors applicants were agriculturists at the date when Suit No. 33 of 1938 was filed and also in 1942 when the application under S. 8 was made is conceded by Sri G. N. 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 S. 2 (6) 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 2(17) 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 relating to a loan? Loan is thus defined in S. 2 (9):"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 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."11. 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 recoverable, i.e., 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, i.e., in July 1937, Sri Kunzru concedes that Sita Ram was not assessed to income-tax since 1936. Assuming, but without deciding, that the proviso to S. 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 S. 2(3) 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 proviso to S. 2 (3), that, is to say, by reason of his being, assessed to income-tax on July 28, 1931. According to the evidence of Suraj Mani Tripathi and Sita Ram 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 income-tax on July 28, 1931. It is not disputed that the taxable minimum was reduced from Rs. 2,000 per annum to Rs. 1,000 per annum by the Indian Finance (Supplementary and Extending) Act, 1931, which was enacted on November 28, 1931. Therefore, at the date of the advance, i.e., on July 28, 1931, Sita Ram whose salary was below Rs.2,000 per annum was not only not actually assessed to income-tax but was not even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduction of income-tax out of the salary was in the month of February 1932 and the income-tax assessment form for1931-32 (Ex. S) 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 evidence in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under S. 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 S. 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by S. 2 (9).The Courts below, therefore, were right in their conclusion that the judgment-debtors applicants were entitled to the benefit of the Act.12. Sri G. N. Kunzru finally submitted that in any case the accounts could not be taken from 1922, for the mortgagees under the two mortgagees 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 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 specifically 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 behalf in 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. It is clear from the wording of the sub-section that there are three prerequisites for exercise of the right conferred by it, namely, (1) that the application must be by an agriculturist and (2) that 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 applicants were agriculturists at the date when Suit No. 33 of 1938 was filed and also in 1942 when the application under S. 8 was made is conceded by Sri G. N. 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 S. 2 (6) 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 2(17) defines the phrase "suit to which this Act applies" as meaning any suit or proceeding relating to aat the date of the advance, i.e., on July 28, 1931, Sita Ram whose salary was below Rs.2,000 per annum was not only not actually assessed to income-tax but was not even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduction of income-tax out of the salary was in the month of February 1932 and the income-tax assessment form for1931-32 (Ex. S) 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 evidence in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under S. 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 S. 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by S. 2 (9).The Courts below, therefore, were right in their conclusion that the judgment-debtors applicants were entitled to the benefit of thehave 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 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 specifically 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 behalf in 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.