(1.) D. C. Srivastava, J. This is defendants second appeal against the judgment and decree, dated 25th April, 1986 of Sri N. S. Gupta, 1st Additional District Judge, Mathura.

(2.) BRIEF facts essential for disposal of this appeal are as under : -

Deceased defendant Nakta, father of the present appellants, borrowed a sum of Re. 5000 from the plaintiff-respondents and executed mortgage deed in respect of five bhumidhari agricultural plots, having total area 3. 93 acres, agreeing to pay interest at the rate of 6 per cent per annum. Since nothing was paid towards principal and interest, a suit for recovery of money was filed on 18th July, 1976.

The suit was resisted by the deceased defendant Nakta on several grounds. He admitted the execution of mortgage-deed, but denied to have obtained loan of Rs. 5000. On the other hand he admitted that he borrowed Rs. 4000 only. There was no dispute regarding agreed rate of interest. He further pleaded that he bad paid Rs. 5000 towards loan but this amount was not adjusted by the plaintiff-respondents. According to Nakta Rs. 500 only were due.

(3.) NAKTA died during the pendency of the suit and his sons, the present appellants were impleaded as his legal representatives.

(4.) BOTH the courts below upheld the execution of the mortgage-deed and also passing of Rs. 5000 as consideration. It was further held by the two courts below that nothing was paid by Nakta towards principal and interest. Certain pleas were not raised by Nakta in his written statement. During argument in the two courts below few legal pleas were taken, namely, the suit was barred by U. P. Act No. 4 of 1977, namely, U. P. Debt Relief Act and also by the provisions of U. P. Money Lending Act. These pleas were also answered in negative by the two courts below against the defendants. The suit was ultimately decreed by the trial court and the appeal was dismissed by the lower appellate court.

In this appeal several points were raised by the learned counsel for the appellants. The findings on question of fact recorded by the two courts below cannot be agitated in this second appeal. The legal points raised by the learned counsel for the appellants were those which were never pleaded in the written statement nor the written statement was got amended.

(5.) THE first contention was that Nakta was a small farmer within the meaning of U. P. Debt Relief Act and since no issue was framed on this point grave prejudice was caused to Nakta as well as to his legal representatives. According to the learned counsel for the appellants the lower appellate court should have framed issue on this point and should have remanded the suit for fresh trial. So that adequate and proper evidence could have been adduced, Since no issue was framed on the point, it has vitiated the trial. It was, there fore, urged that in this second appeal additional issues may be framed and the case may be remanded for fresh trial.

(6.) ANOTHER contention has been that since Nakta died during the pendency of the suit and his four sons were impleaded as legal representatives and further because Nakta left behind a daughter, all the five persons became small farmers and in this view of the matter also the suit could not have been decreed.

I do not find force in the plea and argument that additional issue should be framed in this second appeal and the case should be remanded for fresh trial. Order XLI, Rule 25 of the Code of Civil Procedure provides as under:- "where Appellate Court may frame issues and refer them for trial to court whose decree appealed from - Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to t