TaxTMI 
TaxTMI 
1938 (4) TMI 8
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....relevant portion of which is-as follows: 5. (1) Notwithstanding anything contained in the Coda of Civil Procedure 1908, the Court shall, unless for reasons to be recorded directs it otherwise, at any time, on the application of the judgment-debtor and after notice to the decree-holder, direct that any decree for money or preliminary decree for sale or foreclosure passed by it or by any Court whose business has been transferred to it against an agriculturist, whether before or after this Act comes into force, shall be converted into a decree for payment by instalments drawn up in such terms as it thinks fit in accordance with the provisions of Section 3.... (2) If, on the application of the judgment-debtor, the Court refuses to grant instalments, or grants a number or period of instalments which the judgment-debtor considers inadequate, its order shall be appealable to the Court to which the Court passing the order is immediately subordinate, and the decision of the Appellate Court shall be final. 2. The facts giving rise to the two applications in revision are undisputed and are as follows : Shah Chaturbhuj, the applicant in the two civil revisions before us, b....
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...., except in the way of appeal, as hereinafter provided, no Court other than a Revenue Court shall take cognizance of any dispute or matter in respect of which any such suit or application might be brought or made. 4. It was held by a Full Bench in Bhagwat Das v. Chhedi Koeri Tenancy Act (Act 2 of '1901) is a bar to the exercise by the High Court of its powers in its revisional jurisdiction, in any suit or application relating to a dispute under the Tenancy Act. It is contended that the provisions of Clause (2) of Section 5 are analogous to the provisions of Section 167, Tenancy Act and accordingly this Court is debarred from exercising revisional jurisdiction with respect to orders passed by the Courts below under Section 5, Agriculturists' Belief Act. In our judgment the preliminary objection is without force. 5. The revisional jurisdiction of this Court is defined and regulated by Section 115, Civil P.C. By that section this Court is empowered to exercise revisional jurisdiction with respect to all cases "decided by any Court subordinate to" this Court provided the conditions laid down by Clause (a) or Clause (b) or Clause (c) of that section are satisfied. The sect....
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....d to provide for the relief of encumbered estates and the latter Act was passed to provide relief to agriculturists from indebtedness. The objects with which the two Acts were passed were almost similar. By Section 45, Encumbered Estates Act provision is made as regards appeals against decisions, decrees or orders passed under that Act. Clause 5, Section 45 of that Act provides that "the decision on an appeal under this section shall be final." This provision in the Encumbered Estates Act was the subject of interpretation by this Court in Ashraf v. Saith Mal AIR 1938 All 47, and it was held that the word "final" as used in Section 45(5) could only mean "not subject to appeal." It was further held in that case that the order of the Appellate Court passed under Section 45 could not be final in the sense that the power to interfere in revision is shut out and consequently the High Court has power to interfere in revision under Section 115, Civil P. C. 8. The provision about the finality of the (decision of the Appellate Court contained in Clause (2), Section 5 cannot therefore warrant the inference that the Legislature intended in any way to limit or control the revisional jurisdic....
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....is the decree of the ultimate Court of Appeal. It is therefore obvious that in a case in which a decree has been passed by an Appellate Court the application under Section 5(1) must have reference to the decree of the final Court of Appeal and not to the decree of the trial Court. In this view of the matter it can be argued with great force that the Court mentioned in Section 5(1) must be the Court that passed the ultimate decree in the case. But there is an insurmountable difficulty in the way of accepting this argument. It is clear that by Clause (2) of Section 5, the Legislature has given the judgment-debtor a right of appeal to the Court to which the Court passing the order under Clause (1) of that section is subordinate. If the contention on behalf of the decree-holder is accepted it would lead to this anomaly that in cases in which this Court has passed a decree on appeal the order passed by this Court under Clause (1) of Section 5 will not be appealable for the simple reason that this Court is the highest Civil Court of Appeal in the Province [vide Section 3 (24) of the General Clauses Act]. It was suggested that an appeal against an order passed by this Court under Clause (....
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....urt" that "passed" the decree in Section 5, Agriculturists' Belief Act. We find it difficult to accede to this contention for the simple reason that an application under Section 5 is not an application "in relation to the execution of" a decree. An application in relation to execution of a decree is ordinarily made by a decree-holder and not by a judgment-debtor, whereas an application under Section 5 must necessarily be made by a judgment-debtor and not by a decree-holder. It is therefore impossible to hold that an application under Section 5 is an application in relation to the execution of a decree; the more so as an application under Section 5 can be made even though proceeding for execution may not have been initiated by the decree-holder or even contemplated by him. We therefore hold that an application under Section 5(1) can be made only to the Court of first instance that dealt with the suit or to the Court to which the business of the Court of first instance that decided the suit may have been transferred. This was the view taken by the Oudh Chief Court in Pirthipal Singh v. Raghubar Dayal A.I.R (1936) . Oudh. 5. 12. The question however remains whether the decrees ....
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.... Section 3." Section 3 authorizes the Court to fix instalments for the payment of "the total amount found due for principal, interest" at the time of passing a decree for money. The mention of principal and interest in the section leads to the conclusion that Section 3 is confined in its operation only to decrees passed for recovery of loans. As the procedure of the Court under Section 5(1) is to be regulated by the provisions of Section 3, the decree for money contemplated by Section 5 must be a decree of the same description as is referred to in Section 3. This leads us to conclude that the words "any decree for money" used in Section 5 mean decrees for money passed with respect to a loan as defined by the Act. 14. This conclusion becomes irresistible when one turns to Section 8 of the Act. Sections 3, 5 and 8 are in Ch. 2 of the Act. Clause 1 of Section 8 provides that: No person shall be deemed to be an agriculturist for the purposes of this chapter, unless he was an agriculturist both at the time of the advance of the loan as well as at the date of the suit. 15. Section 5(1) makes provision only with respect to decrees passed against agriculturists. Section 5 re....