V.D. Bhargava, J.@mdashExecution first appeals Nos. 4 of 1954, 5 of 1954 and 18 of 1956 along with civil revision No. 91 of 1958 arise out of the same subject matter and can be disposed of together. Therefore they had all been connected.
2. The facts of the case are that there was one Kishori Lali wife of the Appellant Raj Kumar Lal Har Shanker who was the Talukdar of Shabpur Estate, district Gonda. The estate was under the management of the Court of Wards. She died sometimes near about 1946 and a suit for possession was brought by Bhaiya Bhagwati Prasad Singh, Respondent in execution first appeal No. 18 of 1956 and by Ranjit Singh, who was transferee of a share from Bhaiya Bhagwati Prasad Singh, who is Respondent in appeals Nos. 4 of 1954 and 5 of 1954 and is opposite party in civil revision No. 91 of 1958. Among the Defendants was the Deputy. Commr. and the Appellant Raj Kumar Lal Har Shanker Singh, husband of Kishori Lali.
3. On 15-9-47, a compromise was arrived at between the Plaintiffs and the Defendant No. 2, that is, the Appellant--the Deputy Commr. was only a party as being the manager of the Court of Wards--by which, it was agreed that a suit for partition be decreed that Plaintiff No. 1, that is, Bhaiya Bhagwati Prasad Singh was entitled to one-third share, that Plaintiff No. 2, that is, Ranjit Singh was entitled to one-third share and the Defendant No. 2, that is Raj Kumar Lal Har Shankker Singh was entitled to the balance of the one-third share. A decree in the above terms of compromise was therefore passed.
4. A final decree for partition was passed on 16-4-1948 and during the pendency of the case, after the death of Smt. Kishori Lali, the Court of Wards had been paying a sum of Rs. 500/- to Defendant No. 2, that is, Raj Kumar Lal Har Shankar Singh as maintenance. An application was made to the court that that, payment should be stooped. On 7-9-48, there had been certain statements made by the counsel for the parties On behalf of Ranjit Singh it was stated that he had no objection to the maintenance allowance in dispute being paid to Defendant No. 2, that is, the present Appellant, by the Court of Wards. This statement was made because on behalf of Defendant No. 2, that is the Appellant, a statement was made by Sri Raj Narain Shukla, his counsel, that his client had no objection, if the estate or two-third of the estate was released from the superintendence of the Court of Wards on the Plaintiffs paying two-third of the debt due from the estate. He further stated that his client would have no objection if the maintenance allowance, that he got since the date of the compromise, that is 15-9-47 is debited against his share at the time of the release, in other words the amount was to be debited from one-third share in the cash and movables of the estate at the time of the release.
5. After the above statement the court passed the following order:
In view of the above statements of parties'' counsel I withdraw the injunction. The maintenance allowance that will be paid by the Court of Wards to the Applicant since the date of the compromise viz. 15-9-47 will be debited against the share of the Applicant at the time of the release of his share from the Court of Wards. If there will be cash balance then the amount will be deducted from his share in it otherwise his share in the movables will be reduced proportionately.
6. There was yet another compromise on 15-9-51. Inter alia, it provided as follows:
About the money paid to Defendant No 2 by the Court of Wards since 15-9-47, the date of decree, it is agreed that the Court of wards, Defendant No. 1, shall adjust accounts between the parties by 15-10-51, in such a way that from the moneys payable to the parties according to their sharet i.e. 1/3rd each the payments made to Defendant No. 2 shall be adjusted and if any balance is still found payable from Defendant No. 2, it shall be regularly paid as the 1st charge out of the share of profits of the Defendant No. 2 after the payment of Rs. 500/- per month to the Defendant No. 2. In case the Zamindari is abolished, the payment to the Plaintiff on account of the aforesaid dues from Defendant No. 2, shall be a first change on the Estate or the compensation which may be payable to Defendant No. 2 and shall be realizable at once by execution of decree against such compensation or the share of the Estate of Defendant No. 2 in suit.
7. Thereafter, when accounts were done it transpired that there was an extra sum which had been paid to the Appellant and a decree for that extra sum was passed in favour of Ranjit Singh decree-holder-Respondent and also in favour of Bhaiya. Bhagwati Prasad Singh. On 26-6-53, first application for execution was put up before the District Judge by Ranjit Singh for about Rs. 12,000/- and odd to be realised from interim compensation money by attachment. There was also another application to the same effect by him. Bhaiya Bhagwati Prasad Singh also filed a similar application for execution. In all the three, objections were taken by the judgment-debtor Appellant to the effect that interim compensation was not liable to attachment u/s 47, that the decree was in the nature of a debt within the meaning of Act XV of 1953 and that the decree was liable to be reduced and therefore, the execution application should be dismissed. In all the three cases, the learned District Judge, held, that the decretal amount was riot a ''debt'' and therefore, Zamindar Debt Reduction Act, XV of 1953, did not apply. In any event, even if it was a ''debt'' it was due to a person, where the debt was advanced on his behalf by the Court of Wards and therefore, it would not come within the definition of ''debt'' as defined under the UP Zamindars'' Debt Reduction Act. Aggrieved by the decision the judgment-debtor has come to this Court and has filed Appeals Nos. 4 to 1954, 5 of 1954 and 18 of 1956. An objection was also taken whether the executing court could act under the provisions of the Zamindars'' Debt Reduction. Act and therefore, an application was made to the court which passed the decree for amendment. That Court also refused to reduce the decree and against that order Revision No. 91 of 1958 has been tiled.
8. Really speaking the objections that had been taken to the applicability of the Zamindars Debt Reduction Act could not be taken u/s 47, Code of Criminal Procedure before the executing court. That objection would not relate to satisfaction or discharge of a decree. Section 4 of the UP Zamindars Debt Reduction Act makes it clear that it is only the court which passed the decree which can reduce the debt and the executing court has not been given any right. Thus, if the application, that had been given by the judgment-debtor before the executing court, cannot be called a proper application u/s 47 and if the decision is not u/s 47, it would not give a right of appeal simply because the application was headed u/s 47. This was the preliminary ground taken by the decree-holder about the maintainability of the three appeals. We entirely agree with the learned Counsel for the Respondent that no appeal lies.
9. On merits the question involved in the appeals is the same which is involved in the revision and even in revision we are against the judgment-debtor on merits and we think that the decision of the trial court was correct. These matters had actually come before one of us and since the question involved was an important question of law they had been referred to a Bench.
10. Learned Counsel for the Appellant had urged that the amount which was due from the judgment-debtor was a ''debt'' as defined in the UP Zamindars Debt Reduction Act. In Section 2 of the Act ''debt'' has been defined as follows:
''debt'' means an advance in cash or in kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or after the first day of July, 1952 or a debt due to--
(i) the Central Government or Government of any Sate;
(ii) a local authority;
(iii) a scheduled bank;
(iv) a co-operative society; and
(v) a waqf, trust or endowment for a charitable or religious purpose only;
(vi) a person, where the debt was advanced on his behalf by the Court of Wards to a ward.
11. The word ''loan'' has been defined in very much similar language in the UP Agriculturists'' Relief Act which is as follows:
''Loan'' means an advance to an agriculturist, whether of money or in kind and shall include any transaction which, is in substance a loan, but shall not include....
12. In the similar language the word ''loan'' has been defined in Section 2(9) of the UP Debt Redemption Act which is as follows:
''Loan'' means an advance in cash or kind made before the first day of June, 1940....and includes any transactions which in substance amounts to such advance, but does not include an advance....
13. In cases arising out of the UP Agriculturists Relief Act and the UP Debt Redemption Act this Court has held that "the unpaid price of goods does not amount to a loan." See Nihal Singh v. Ganesh Dass Ram Gopal 1936 C.W.N. 1158, Khincha Mal Hari Kishan Das v. Khub Ram Munna Lal 1937 AWR (HC) 674 and Narain Das v. Mst. Radha Kuar and Anr. 1938 AWR (HC) 770. A decree for malicious prosecution has been held to be not based on loan. See Shah Chaturbhuj V. Mauji Ram 1938 AWR (HC) 437. Dower debt has been held not to be a loan in the case of Bibi Rehana Khatun v. Iqtidar Uddin Hasan 1943 AWR (HC) 37.
14. In the case of Hajee Mohd. Shibli Khan v. Ish Datt Dikshit 1939 AWR (HC) 252 a share of motor lorry was sold and in order to pay the price there was executed a mortgage deed of the share of the sold lorry and some plots of land. It was held by Mulla, J. that the transaction between the parties was not an advance in cash or in kind.
15. We are of opinion that actually there was no advance given to the judgment-debtor it was really a case of accounting. On the date when the compromise was entered into, it was not known whether the judgment-debtor had taken more amount than his own share.
16. If there were two partners and each one of them had taken advances from the partnership firm and one may have taken more than the other, then one, who had taken more, would be liable to refund the money, but it would not be a loan. Similarly, here both the decree-holders and the judgment-debtors were partners in the property, each being entitled to one-third share. Certain amounts were paid to one of the co-sharers, which was actually in excess to his share and therefore, that co-sharer would be liable to refund the excess amount paid, but not as a debt or as an advance. We might take the analogy of advances made to a contractor, who from time to time demands money for the work done by him. During the course of the contract certain amounts are paid at times, but ultimately, if it is found that extra had been paid than the amount of work done, then in that case, the amount so advanced would not be a kind of debt or a loan, but would be an amount due on accounting. The amount which is due on accounting is clearly distinct from a debt. In a debt when advance either in cash or in kind, is made both the debtor and the creditor know that the advance is being made as a debt, but where at the time of the advance neither the creditor nor the debtor knows whether it has been paid in excess of the share, to our mind, it cannot be called an advance as a debt.
17. Learned counsel for the Appellants had relied on the case of Sheo Balak v. Sarabjit Singh and Ors. 1952 AWR (HC) 183. In this case the Full Bench has held that:
If an existing pecuniary liability is substituted by a fresh liability secured by a mortgage or a pro-note the claim under the mortgage or the pronote must be held to be a loan irrespective of the manner in which the original liability arose. Thus where some of the co-sharers appropriate money due to another co-sharer and in satisfaction of that liability execute a mortgage deed in favour of that other co-sharer, the transaction evidenced by the mortgage deed amounts to a loan within the meaning of the term as defined in the agriculturists'' Relief Act and the Debt Redemption Act.
18. On the basis of the above observation the learned Counsel for the Appellant argued that when there was a compromise, that this amount would be debited against the share of the judgment-debtor they agreed to treat it as a loan. With respect we are unable to agree with this contention. It was after the filing of the suit that this compromise came into existence and therefore, anything which had happened in the suit itself will not convert the nature of the original transaction. Actually in this case even on the date of the compromise, it was not known whether the money would be due to the decree-holders or not. Under the circumstances, how can it be said that the parties on that date agreed to treat it as a debt.
19. In case the amount was ascertained before the filing of the suit and the parties had executed a mortgage or promisory note the position might have been different and it may have been urged that though initially it was not a debt but by execution of the mortgage deed or a promisory note they treated it as a debt.
20. We are, therefore, clearly of opinion that the decision of the courts below in different cases that the transaction does not amount to a debt is correct and if the transaction is not a debt, the UP Zamindars Debt Reduction Act will not be applicable at all.
21. Even if we were to hold that it amounted to a debt, we are of opinion that it would not be a debt within the definition of the word as defined in the UP Zamindar''s Debt Reduction. Act. By Sub-section (2)(f) read with Clause (vi) a debt due to a person where the debt was advanced on his behalf by the Court of Wards to a ward would not be a debt. There can be no manner of doubt that this payment had been made by the Court of Wards to the judgment-debtor who was a ward at that time. If it was a debt at all, it was made on behalf of he decree-holders. Therefore within this exception the case clearly falls and even if we were to assume that it was an advance in cash and was a transaction which in substance amounts to debt yet on account of Clause (vi) it would be exempted within the meaning of ''debt'' as defined in the UP Zamindars Debt Reduction Act.
22. If the above Act does not apply then Section 9 would also not apply because it applies to a decree to which that Act applies. Moreover, in the present case there had been a definite agreement between the parties that in case the zamindari is abolished this amount would be realisable from the compensation money. In the circumstances, the decree-holders are entitled to realise the amount from the compensation money and their execution application should proceed. We, therefore, see no force either in the appeals or in the revision. All of them are dismissed with costs.
23. Since the decree is an old one and since these matters have been pending here for some time the record of the case shall be sent back forthwith to the court below so that the execution of the decree may be made at an early date.
