Dayal, J.:— This is a judgment-debtor's appeal against the order of the court below disallowing his claim about the non-saleability of certain land in view of section 17 of the United Provinces Debt Redemption Act.
The facts leading to this appeal briefly are that Raghubir Gir and Chunni Gir brothers executed a simple mortgage bond for Rs. 2,100 in favour of Badam Gir and others. In 1938 the heirs of Chunni Gir transferred their share of the equity of redemption in the mortgaged property to. Raghubir Gir and left Us. 1,300 out of the sale consideration with the vendee for paying off the vendor's share, of the mortgage debt. The mortgagee got the decree for sale against Raghubir Gir only. In execution of this decree Badam Gir and pther decree-holders sought the sale of half the mortgaged property which Raghubir Gir had purchased from the heirs of Chunni Gir and of the houses of Raghubir Gir in the abadi. They also sought the execution of a usufructuary mortgage for 20 years, in accordance with the terms of the United Provinces Debt Redemption Act, with respect to half the mortgaged property, which was owned by Raghubir Gir from before the sale to him by the heirs of Chunni Gir. The judgment-debtor, Raghubir Gir, claimed protection from sale with respect, to the property he had purchased from the heirs of Chunni Gir and also with respect to the houses. The trial court rejected his objection and allowed the execution to proceed in the manner sought by the decree-holders. Raghubir Gir appealed and the learned Additional Civil Judge dismissed the appeal with respect to the property he had purchased and allowed it with respect to the abadi by his order, dated the 1st of June, 1945. It is against this order that Raghubir Gir filed this second appeal.
The decree-holders filed a review application before the learned Additional Civil Judge with respect to the dispute about the abadi. The learned Additional Civil Judge reviewed his order and ordered the sale of the site of the abadi. Against this order Raghubir Gir has filed First Appeal From Order No. 191 of 1946.
The first appeal has no force on merits. The abadi land does not come within the definition of the word, ‘land’, in section 2, sub-section (8) of the United Provinces Debt Redemption Act which is:
“‘Land’ means land in a mahal in the United Provinces but does not include land occupied by buildings or appurtenant thereto…”
It is, however, contended that no ground for review, as contemplated by Order XLVII, rule 1, Civil Procedure Code, existed and that, therefore, the court below could not have reviewed its previous order. We are of opinion that the ground for review, can be referred to that part of Order XLVII, rule 1, Civil Procedure Code, which allows a review for any other sufficient reason. It is obvious that there was an error in the original order of the learned Additional Civil Judge which appears to have been passed with pointed attention towards the question of saleability of the houses as such without any particular attention to the question of the saleability of the site. The error can be said to be analogous to the error apparent on the face of the record. It was held in Narain Das v. Chiranji Lal(1):
“In our opinion, the words ‘for any other sufficient reason’ in Order XLVII, rule 1, are not only very wide in themselves, but were intentionally so made by the legislature, because of the possibility of exceptional cases arising in which obvious injustice would be worked by strict adherence to the terms of the decree as originally passed. We are not prepared to hold that the court below was outside its jurisdiction in passing the order now under appeal.”
We, therefore, consider that the court below rightly reviewed its previous order and ordered that the site of the abadi was saleable.
The main point for determination in the second appeal centres round the interpretation of the definition of the word, ‘loan’, in section 2, sub-section (S) the United Provinces Debt Redemption Act which is:
“‘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 transfened to another person of an advance by the Central or Provincial Government or by a local authority authorized by the Provincial Government to make advances or by a co-operative society or by scheduled bank.”
The question really is whether this contract between the heirs of Chunni Gir and Raghubir Gir in the sale transaction with respect to Raghubir Gir's retaining Rs. 1,300 to pay off the vendor's share of the mortgage debt can be said to be a contract with the borrower as contemplated in the definition of the word, ‘loan’. There is no dispute that the transfer of liability for the repayment of the loan means a transfer of the entire liability with respect to the loan. What is contended for the respondents is that in case of there being more borrowers than one, the transfer of liability with respect to the entire share of one or more of such borrowers, who made the transfer, would be sufficient to make the portion of the advance corresponding to the share of such transferors not a loan. We do not consider such an interpretation to be justified and are of opinion that the contract contemplated in the definition of the word, ‘loan’, means a contract with the entire body of borrowers. There is nothing in the definition of the word, ‘loan’ or in any other provision of the United Provinces Debt Redemption Act which can justify the court to split up the transaction of loan ‘into,’ separate transactions. If the contract between one of the several borrowers with a third person was contemplated in the definition of the word, ‘loan’, the expressions used could have been different. It is the advance which is to be considered as a ‘loan’ and ordinarily, it should not be that an advance with respect to certain person should be a loan and with respect to another should lose its character of a loan. That an advance should be treated as a whole in considering the definition of the word, ‘loan’, in proceedings under the U.P Debt Redemiption Act can be inferred from the provisions of section 11 of the Act which has provided for the apportionment of a loan when it is a joint loan due from several persons any of whom is an agriculturist or a workman. If the Act had contemplated the apportionment of a loan between such borrowers who had transferred their liability and the non-transferors, it could have provided similarly for such an apportionment.
A further point that arises is, whether the transfer of a liability by “one borrower” to a “co-borrower” can be held to be a transfer by “the borrower” to “another person”. The use of the words “another person”, in conjunction with the words “the borrower” in the definition of the word “loan”, clearly indicates that the contract transferring the liability for the repayment of the loan should be between the borrower and a third person. A transfer inter se between co-borrowers is not contemplated. Though the question was not directly in issue in the case reported in Ram Prasad Singh v. Bachcha Singh, the words, ‘another person’, were interpreted in that case and it was observed:
“The fact that the transferee of the liability is designated by the words ‘another person’ does not indicate, to my mind, that the Legislature intended to confine the expression to a non-agriculturist or a non-workman, for if such was the intention, one would expect a somewhat different language. The object in making the exclusion was to debar all persons who were not originally the debtors but who have, as a matter of business transaction, acquired the property and thereby taken upon themselves the liability to discharge the debt. The words ‘another person’ therefore, I believe, are used in a comprehensive sense comprising all transferees of liabilities regardless of the consideration whether they are agriculturists, non-agriculturists, workmen or persons of any other description or denomination….”
In this view of the matter too, the retention of Rs. 1,300 by Raghubir Gir to pay off the vendor's share of the mortgage debt would not amount to another person's undertaking the liability for the repayment of the loan under a contract with the ‘borrower’.
We are, therefore, of opinion that the loan under the mortgage deed continues to be a loan for the entire amount and, therefore, the land purchased by Raghubir Gir from the heirs of Chunni Gir is protected from sale. In view of the above, we allow the second appeal with costs, set aside the order of the court below and order that half of the mortgaged property, excluding the site of the abadi, purchased by Raghubir Gir is also not saleable in execution of this decree. We dismiss the First Appeal From Order with costs.
Second appeal allowed; First appeal from order dismissed.