U.C. Sharma, J.-

This appeal by the defendants is directed against the judgment of reversal arising out of a suit passed on a hand note.

2. Briefly stated, plaintiff's case was that defendant no. 1 as kana of his joint family, took a loan of Rs. 2,88/- from the plaintiff with interest on 15.4.1963 and executed a hand note. The defendants in spite of the repeated demands did not repay the loan. Hence the suit.

3. The defendant admitted that he had taken the loan from the plaintiff on execution of the hand note but his substantial defence was that he repaid the loan and in taken of the re-payment the plaintiff granted him stamped receipt. In those circumstances it was contended that the plaintiff had no cause of action to file the suit.

4. Both parties adduced evidence in support of their respective case. The defendant produced the receipt purported to be granted by the plaintiff in his favour in support of the plea of re-payment of the loan. That receipt was marked as Ext. E/1 in this case. The parties went to trial court on the question whether the plea of payment raised by the defendants was correct. Naturally, the question of genuineness or otherwise of the receipt fell for consideration in the courts below. The trial court found the receipt genuine, accepted the plea of payment raised by the defendants and dismissed the plaintiff's suit. The lower appellate court reversed the findings and rejected the receipt. As the excution of the handnote and passing of consideration thereunder were admitted, the lower appellate court decreed the plaintiff's suit.

5. Learned counsel appearing for the appellants did not dispute any finding recorded by the court below, but contended that the suit is hit by the provisions of section (4) of the Bihar Money Lenders Act (old) and section 8 of the new Act. It would appear that this question was not raised in the pleadings of the parties nor did they raise this question at any stage of the suit. It was for the first time that this question has been raised at the second appeal stage. This court, while admitting the appeal, framed the question in the following terms.

"was the suit maintainable in absence of any pleading or proof as to whether the plaintiff was a registered money lender."

The learned counsel appearing for the respondent contended that the question now being, raised, having not been raised at any stage o( the suit, the court below was quite justified n deciding the suit on the pleadings of the parties and it cannot be raised for the first time in second appeal.

6. Section 4 of the Bihar Money Lenders Act (hereinafter to be referred to as "the Act") reads thus :

No court shall entertain a suit filed by a money lender for the recovery of a loan advanced by him after the commencement of this Act unless such money lender was registered as such under this Act at the time when such loan was advanced".

This section thus prohibits a court from entertaining suit filed by s money lender for recovery of a loan unless such money lender was registered under the Act. The word "loan" has been defined in section 2 of the Act. It means a loan on interest advanced by a money lender. According to the definition, money lender" means a person advancing loan...From these definitions it is clear that if a person advance loan on interest, he is a money lender. It has been observed in some of the decisions that when section 4 of the Act refer to "money-lender" it means professional money lender; profession implies repetition, habit, continuity etc, and therefore, stray advances would not be covered by the expression "money-lender" in section 4 of the Act. It may however, be pointed out that section 4 of the Act speaks of a money lender and not a professional money lender. So far as professional money lender is concerned, the observations as referred to above may be correct but since the act does not speak of professional money lender. I do not think those observations would apply to a case arising out of th