Adit Narayan Singh and Others vs Sm. Binapani and Others

Manohar Lall, J.—This is an appeal by the decree-holders who are aggrieved by the appellate order passed by the learned District Judge of Patna, dated 2nd May 1940, by which he reversed the order of the learned Munsif in an execution case started by the appellants.

It appears that the decree-holders and the judgment-debtors were cosharer landlords of village Bariarpur in which each was interested to the extent of eight annas. The collection of the village was in charge of a common patwari, and the arrangement between the parties was that if at the end of the year it was ascertained that any sum larger than what was actually the share of one of the cosharers was paid over by the patwari, the other cosharer would be entitled to recover from his cosharer the excess amount which was so discovered on accounting together with interest at the rate of one per cent, per mensem.

The decree-holder''s case was that they discovered some time in 1936 or 1937 that a sum of Rs. 1400 was paid over to the judgment-debtors by the patwari in excess of what were the legitimate dues of the judgment-debtors. Accordingly they instituted a suit for the recovery of that sum, but the matter was compromised between the parties and a compromise decree was passed on 14th July 1937, for a sum of Rs. 1247. It was also provided in that compromise decree that the amount which was thus fixed as payable by the judgment-debtors should be paid in this way: Rs. 600 was to be paid in cash in January 1938, Rs. 200 was to be paid on or before 20th March 1938, and the balance of Rs. 447 odd was to be liquidated by the execution of a deed of assignment for the arrears of rent due to the judgment-debtors in favour of the decree-holders.

It may be observed here that the judgment-debtors had transferred their share in the village to a third party and, therefore, all that was due to them in this village was the arrears of rent which apparently had not been transferred to the vendee. This deed of assignment was to have been executed by 17th July 1937. After this compromise decree was passed, the judgment-debtors did not carry out any of the terms of this compromise beyond executing the deed of assignment on 2lst July 1937, that is to say four days after the date fixed for its execution.

One of the points taken by the decree-holders was that as the judgment-debtors had not executed the deed of assignment within the time fixed by the compromise the subsequent execution thereof was not in compliance with the terms of the compromise and therefore they claimed to be entitled to execute the decree for the entire sum of Rs. 1247.

The learned District Judge, in agreeing with the learned Munsif, held that the time was not of the essence of the contract and, therefore, he thought that the judgment-debtors were entitled to have the delay condoned. It is unnecessary to consider this aspect of the case, because the learned District Judge has found as a fact that the deed of assignment was really acted upon by the decree-holders, who collected some of the arrears due from the tenants on the strength of this deed. This finding was objected to by the learned advocate for the appellants before us, but it is difficult for this Court to interfere in second appeal with this finding of fact which is binding on us. Now once the findings of fact is ruled to be binding it must be held that the decree-holders have waived their right to execute the decree for the sum which was covered by this deed of assignment. It follows that the decree-holders are entitled to execute their decree for Rs. 800, being the two instalments which had not been paid over in January and March 1938, together with interest thereon as provided by the compromise decree.

The learned Munsif was asked to exercise his power under the Bihar Money-lenders Act by fixing instalments by which this sum should be paid to the decree-holders and also by fixing the valuation of the properties which were attached by the decree-holders in execution. But the learned Munsif took the view that the original sum of Rs. 1400 which was due to the decree-holders was not a "loan" within the meaning of Section 2, Clause (f), Bihar Money-lenders Act. He, therefore, refused to take action under the provisions of the Bihar Money-lenders Act. The learned District Judge in appeal, however, has come to the conclusion that it is difficult to understand how the debt in question was not a loan within the meaning of Section 2(f), Bihar Money-lenders Act, and in that, view he directed the learned Munsif to proceed to exercise his powers under the relevant provisions of the Money-lenders Act.

In my opinion the learned Judge was in error in treating the amount due to the decree-holders in this case as a loan within the meaning of Section 2(f). If the nature of the events, which led to the institution of the claim by the plaintiffs is borne in mind, it is obvious that the plaintiff decree-holders have never made any advance on interest to the judgment-debtors, assuming that the plaintiffs are money-lenders. It was argued that in substance the transaction was a loan. I do not see how in substance this transaction can in reality be called a loan.

The arrangement between the parties was that any collections which were due from the tenants should be divided by the common patwari half and half. It-is a matter of common experience that at the end of the year, unless there has been an arrangement to the contrary, the patwari or the Tahsildar makes up the accounts and then sends on the amount collected to the master for whom he has made the collections after making such deductions as are permissible to be made by the patwari.

Now, in this case the patwari, instead of sending half the amount to the plaintiffs, made over all the amount to the judgment-debtors. The judgment-debtors thereafter were liable to pay the same to the decree-holders not as a loan but on account of the fact that they had received the money from the patwari on trust for or for the use of the decree-holders.

For these reasons I am of opinion that the learned District Judge took an incorrect j view when he held that the provisions of the Bihar Money-lenders Act should be; applied to this case. The order of the learned District Judge, so far as he directed the learned Munsif to take action under the Bihar Money-lenders Act, is set aside. In other respects his order under appeal is affirmed.

The result is that the appeal is allowed in part and the decree-holders will be entitled to proceed with their execution in the ordinary course. As the decree-holders have succeeded to the extent of RS. 800, they are entitled to half the costs in all the Courts.

Harries C. J.

I agree.