P L D 1949 Lahore 224 (PLP)

B. Z. Kaikaus for Appellant. Muhammad Akram for Respondents. Cornelius, J.‑This appeal arises out of execution proceedings taken by the decree‑holder Bulaqi Mal & Sons under a mortgage decree. The original mortgagor was one Muhammad Sharif, but by the time the suit was filed it seemed that he had alienated pieces out of the mortgaged property to a considerable number of persons, and there was also an equitable mortgagee by name Amar Singh. All these persons were im pleaded as defendants in the suit brought by the mortgagee, which ended in a compromise on the 26th February, 1938. The decree is briefly to this effect, namely, that by the 12th October, 1936, the sum due to the mortgagee was Rs. 6,000 for principal and Rs. 3,393‑14‑0 for interest and costs, and it was decreed that this sum should be paid by the 2nd April, 1938, with interest at 12 per cent per annum from the date of suit, and after the 2nd April 1938, interest would run at 6 per cent. There was the usual stipulation for return of documents by the mortgagee in case payment was made and the provision for the alternative case was as follows, namely, that if payment were not made, then the plaintiff "shall proceed to have the interest of some of the defendants, namely, Kishen Chand, Jowand Singh, Balli Ram, Fazal Karim, Ata Ullah, Sawitri Devi, Daswandha Singh, Brahm Dev, Shiv Dayal, Lachhmi Devi and Amar Singh, either severally or jointly sold off, and the sale proceeds shall be applied towards the liquidation of plaintiff's aforesaid demand". It was further stipulated that "if any balance is still left due to him, he shall have the interest of Milkha Singh, Karnail Singh, Sant Singh, Nathu, Jagan Nath, Chuni Lal, Mst. Kartar Kaur and Harnam Singh sold off". It was only if any balance was still left due that the plaintiff was to be entitled to have 1 kanal 2 marlas out of the land in the possession of Ghulam Nabi, the present appellant sold. If there was still something left of the plaintiff's debt to pay, then the interests of Abdur Rahman defendant and the aforesaid Ghulam Nabi in certain land would be liable not to be sold, but to be temporarily alienated for satisfaction of the debt. If the plaintiff's demand still remained unsatisfied, he would be entitled to apply for a personal decree. Payment was not made as stipulated and the decree‑holder started proceedings against the property of the first‑mentioned group of judg ment‑debtors. After some property had been sold, it was objected that one of the judgment‑debtors named Kishen Chand was a soldier serving under special conditions or war conditions, and the proceedings as against him, were stayed under the Indian Soldiers (Litigation) Act. Before this happened however, over Rs. 2,300 had been recovered by sale of the property in the possession of Kishan Chand, but the sale was not confirmed. Then the decree‑holder applied for recovery of his debt by sale of the properties of the second group of iudgment‑debtors ; those properties were accordingly sold on the 17th. December, 1945. Ghulam Nabi preferred an objection to this sale, on two principal grounds. The first objection was that the decree‑holder was not entitled to proceed against the properties of the second group of judgment‑debtors until he had first exhausted the properties of the first group of judgment‑debtors. The second objection was that the execution application which had been filed on the 2nd October 1944, was barred by time under section 11 of the Punjab Debtor's Protection Act, 1936. In support of the first objection, it was urged that properties be longing to the soldier Kishan Chand as well as to two of the first group of judgment‑debtors, namely, Amar Singh and Mst. Lachhmi Devi, had not been sold. The learned Subordinate judge of the executing Court held that there was no property belonging to Amar Singh which could be sold, but the sole foundation for this finding is a statement by Ghulam Nabi objector to the effect that he did not know whether Amar Singh had any land, and how much it was, and further that there was no entry in the revenue records relating to any land belonging to Amar Singh. He made a similar statement regarding Mst. Lachhmi Devi's land. As regards Kishan Chand's land, the learned Subordinate judge held that the fact of its not having been sold did not affect the proceedings because it was due to no fault of the decree‑holder but to the appli cation of a statute. On the point of limitation, the learned Subordinate judge held that a mortgage decree does not fall within the purview of section 11, Punjab Debtors Protection Act, because a mortgage does not fall within the definition of "loan" contained in clause (6) of section 2 of the same Act. The period for instituting execution appli cations being twelve years under the ordinary law it was held that the decree‑holder's application of the 2nd October 1944 was within time. Accordingly, the objections were dismissed and Ghulam Nabi has now come up in appeal. In the state of the evidence it is not possible to hold affirmatively that the learned Subordinate judge's view concerning the interests of Mst. Lachhmi Devi and Amar Singh is incorrect, although it would certainly seem to be extraordinary that such a ‑ plea, namely, that these two persons were not in possession of any part of the suit land should have been successfully raised when they were themselves parties to the consent decree. However that may be, I think the case is perfectly plain as respects the land in Kishan Chand's possession : hich fetched no less than Rs. 2,300 at auction sale as far back as 1943. As the case stands, that property has not been sold and its proceeds have not been applied to the liquidation of the decree‑holder's debt. It is urged before me by learned counsel for the appellant that as the decree is worded, there is no power in the decree‑holder to enforce his claim against any judgment‑debtor in the second group until and unless he has exhausted the properties in the possession of every judgment‑debtor in the first group. It cannot be said that the decree‑holder was completely debarred by statute from proceeding against Kishan Chand's land. At the worst, it was a case of temporary suspension and the period of suspension could have been brought to an end by the decree‑holder himself making a proper application when the period of hostilities was over, or whenever Kishan Chand returned from his war or special service. Therefore, the sale of the properties of the second group of judgment‑debtors must be held to be contrary to the terms of the decree and consequently liable to be set aside. As to the point of limitation, the argument was that section 11 of the Punjab Debtor's Protection Act was expressed in general terms and must be held to apply to mortgage decrees as it did to all other decrees. The lower Court had relied on the definition of "loan" contained in clause (6)section 2 of the Act ; it was true that the definition expressly excluded "a transaction which is, in substance, a mortgage or a sale of immovable property"; but it was obvious that the definition of loan was only included in the Act to define the meaning of the expression "money‑lender" in clause (7) of the same section, for the word "loan" was not used anywhere else in the Act. The only provision in the Act relating to money‑lenders is that in section 12 whereby the burden of proof is placed upon a money‑lender in certain circumstances to show that consideration alleged to have been paid by him, actually passed. The learned Subordinate judge was not right in employing the definition of loan to restrict the meaning of the word "decree" as used in section 11 of the Act. Agaist the argument brought forward on behalf of the appellant ,,in support of his first objection, learned counsel for the respondent decree‑holder had very little to say, and in my opinion, irrespective of the properties of Amar Singh and Mst. Lachhmi Devi, the existence of unrealised property subject to the decree in the ownership of the judgment‑debtor Kishan Chand is established on the record, and the decree cannot be executed against the second group of judgment‑debtors until and unless this piece of property is realised and thereafter it is ascertained whether or not a balance remains due to the decree‑holder. I cannot construe the decree in any other way but as enjoining that the liability of properties in the possession of the second group of judgment‑debtors to sale in satisfaction of the decree was only to arise after the properties in the possession of the first group of judgment debtors had been duly brought to sale, and the sale proceeds duly applied to the satisfaction of the decree, and if there still remained a balance due to the decree‑holder. Until Kishan Chand's property is duly sold and the proceeds duly applied towards the satisfaction of the decree, it is in my opinion not possible to carry the execution further so as to attach the properties of judgment‑debtors in the second group. I would, therefore, uphold the objection of Ghulam Nabi on this point. As to the point of limitation, I consider that the conclusion of the learned Subordinate judge is correct, but I am unable to agree with the reason put forward in support. I am satisfied that the expression "loan" is only defined in the Punjab Debtors' Protection Act for the purpose of giving meaning and content to the expression "money‑lender" which itself occurs only once in an operative section, viz., section 12 whereby the burden is placed upon the money‑lender to prove that consideration passed from him in certain specified circumstances. That provision does not apply if the loan be in the nature of a mortgage, i.e., in that case a money‑lender would not be required to establish the passing of con sideration, but that is the only limiting effect of the mention of "mortgage" in the definition of "loan", and that definition certainly can not be called in aid for limiting the meaning of the word "decree" as used in section

11. Therefore, I think that the learned Subordinate judge was wrong in his argument, but his conclusion that the ordinary period of limitation, namely, twelve years, is available for filing an application for execution, can in my opinion be supported on a different ground, namely, that section 11, Punjab Debtors' Protection Act, applies only to exe cution of decrees passed after a certain date against a "debtor", not being decrees granting injunctions. For the definition of "debtor" it is necessary to refer to section 7, subsection (2) of the Punjab Relief of Indebtedness Act, 1934. As will be seen, the necessary condition for being a debtor and thus entitled to the benefit of section 11 of the Punjab Debtors' Protection Act is that a person should owe a debt, and (i) earn his livelihood mainly by agriculture and be either a landowner or a tenant of agricultural land, or a servant of such a landowner or tenant, or (ii) earn his livelihood as a village menial doing work con nected with agriculture, or (iii) own assets which in the aggregate do not exceed Rs. 5,

000. There is a proviso to this definition, namely, that every member of a notified agricultural tribe under the Punjab Aliena tion of Land Act, shall be presumed to be a debtor until it is proved that his income from other sources is greater than his income from agriculture. Then there are three explanations, the first of which sets out that a debtor does not lose his privilege under the Act by being in voluntarily unemployed through incapacity or infirmity or by reason of his drawing an income from service in the Armed Forces of the Crown which is in excess of his agricultural income. The second is that a debtor does not lose his status by reason of using plough cattle for purposes of transport. The third is that he does not lose his status merely because he does not cultivate land with his own hands. The impression gained by reading this definition as a whole is that it has reference only to; individuals, and not to groups of persons. Thus, it is possible for two, persons, say brothers to be members of an agricultural trible and yet it may be proved that one of them derives income from sources other, than agriculture or service in the Armed Forces greater than his income, from agriculture and thus is not entitled to be regarded as a debtor in; the sense of the definition. Supposing there is a joint decree against such' a person and his brother ; if the brother satisfies the conditions of a' debtor, would it be possible to consider the decree as a decree against a debtor within the meaning of section 11 of the Debtors' Protection Act ? That section applies by expression to cases "where an application has been made to execute a decree passed after the commencement of this Act against a debtor as defined in subsection (2) of section 7 of the Punjab Relief of Indebtedness Act, 1934, and not being a decree granting an injunction", and provides that "no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of six years" computed from certain specified dates, ,there are two exceptions, one of which saves decrees passed by High Courts, and the other avoids the effect of delays occasioned by the use of fraud or force on the part of the judgment‑debtors. In the hypothetical case posed above, would it be possible in a proper case after the expiry of six years to execute the decree as against that one of the two brothers who does not satisfy the qualifications of a "debtor"? In my opinion, it can be urged with a great deal of force that the section was designed only to assist persons falling within the meaning of the word "debtor"; it cannot Le allowed to be extended so as to repeal the general law relating to persons who are not debtors in the strict sense. If the words "decree passed against a debtor" be construed to include a decree passed against several persons, not all of whom satisfy the condition of being "debtor" and as a result, all proceedings even as against the judgment‑debtors who are not "debtors" in the statutory sense, must stop after six years from the due date, there will be clear extension of the provisions of the section to persons and cases which the section does not either by inten tion or expression embrace. Nor is it possible to continue execution of the decree after the expiry of the six years period against the judgment debtor who is a "non‑debtor", for the prohibition against execution applies to the whole decree, by expression, Ex‑hypothesi, the decree is not divisible into two separate decrees against the individual judgment debtors. The case is similar if, apart from agricultural associations, the status of "debtor" is claimed by reason of lack of assets ; supposing one of the joint judgment‑debtors owns assets which are less than Rs. 5,000, but the other has assets of value exceeding Rs. 5,000, or supposing each owns assets under Rs. 5,000 in value, but their joint assets exceed Rs. 5,000, can the execution proceed against either or both of them after the limitation of six years has expired ? These are difficult ques tions, and as at present advised, I am inclined to the view that, firstly, the definition of "debtor" applies to individuals and not to groups of persons, so that a joint decree against more than one person is not "a decree passed against a debtor", and secondly that where a decree is against more than one judgment‑debtor, and one or more of such judgment‑debtors is or are not within the definition of "debtor", the decree is not governed, for purposes of execution, by section 11, Punjab Debtors Protection Act, as this involves repeal of the ordinary law, in~ respect of persons to whom the special law, viz., the Punjab Debtors'. Protection Act does not relate, and operates in derogation of the legal rights of the judgment‑creditor. In the present case, only a small minority of the judgment‑debtors can be assumed to be "debtors" within the meaning of the relevant defi nition, these are the two or three Muslim judgment‑debtors whose caste is given as Arain, Rajput and Kamboh. Even in their case, the question has not been examined whether they have income from sources other than agriculture or service. in the Armed Forces in excess of their income from agriculture. The bulk of the judgment‑debtors are Hindus and Sikhs of the urban classes who could presumably only be "debtors" in the sense of the definition if they were shown to own assets amounting to less than Rs. 5,

000. Moreover, the form of the present decree is such that the liabilities of persons who may be assumed to be "debtors" in the sense of the definition, are so inextricably mixed with the liabilities of other judgment‑debtors who presumably do not satisfy that defini tion that the decree as a whole cannot possibly be regarded as a decree against a "debtor" within the meaning of section 11, Punjab Debtors' Protection Act. Accordingly I held that the execution application was made within time, but that the objection of Ghulam Nabi to the, sale of properties belonging to the second group of judgment‑debtors was entitled to prevail by reason of the non‑realisation of the sale proceeds of Kishan Chand's property. I accordingly allow this appeal and hereby set aside all proceedings taken in the executing Court for sale of the properties of the second group of judgment‑debtors specified in the decree. I also allow the appellant his costs of this appeal. K. M. A. Appeal allowed