JUDGMENT

Harries, J. - This is a reference by the learned Munsif of Pilibhit under Order 46, Rule 11, Civil P.C., arising out of an application under the U.P. Agriculturists' Belief Act of 1934. The matter originally came before a Bench of this Court and by an order dated 28th March 1938 that Bench referred the matter to the learned Chief Justice for the constitution of a larger Bench. The case has therefore come before this 1'ull Bench. On 17th July 1934 the judgment-debtors who are admittedly agriculturists as defined in the U.P. Agriculturists' Belief Act entered into an agreement with the decree, holder R.B. Sahu Har Pershad who is the owner of a sugar factory at Pilibhit. By that agreement the decree-holder advanced to the judgment-debtors a sum of Rs. 1086 and such advance is stated to be in the agreement in relation to the sale of sugarcane produce for the year 1342 F. and the area of such sugarcane is specified in the agreement. The judgment-debtors also hypothecated 225 bighas kham of this sugarcane crop to the decree-holder. The judgment-debtors also covenanted that they would deliver the entire sugarcane crop of the area specified to the decree-holder at the rate of Rs. 36 per 100 maunds and the money advanced, viz. Rs. 1086, was to be treated as payment or part payment for sugar, cane so delivered. It is then provided that if on account of any terrestrial or celestial calamity there is a failure by the judgment-debtors to deliver the whole or any portion of the crop then they are to be liable for the return of the money advanced together with interest at the rate of 1 per cent, per mensem from the date of the agreement.

2. As we have stated this agreement was entered into on 17th July 1934 and it is clear that the sugarcane crop mentioned in the agreement would not be in a fit state to be harvested and ready for delivery until the end of January or the beginning of February 1935. It appears that the judgment-debtors only delivered sugarcane worth Rs. 135-15-6 and consequently the decree-holder brought a suit No. 15 of 1936 in the Court of the learned Munsif. Under the terms of the agreement he could have recovered a large sum by way of damages, but he abandoned his claim for damages and limited his claim to the balance of the sum advanced together with interest at the rate stated in the agreement. An ex parte decree was passed in favour of the decree-holder by the learned Munsif on 30th March 1936 and thereafter the decree-holder proceeded to realize the decretal amount by attachment and sale of the crops belonging to the judgment-debtors. The judgment-debtors thereupon filed this application in the Court of the learned Munsif praying that the decree passed against them should be converted into an instalment decree under the provisions of Section 5, U.P. Agriculturists' Belief Act. They contended that the advance of Rs. 1086 made by the decree-holder to them was a loan within the meaning of that term as used in the Agriculturists' Belief Act and further that as they were agriculturists both at the time the loan was made and at the time of the suit they were entitled to have the decree converted into an instalment decree u/s 5 of the Act.

3. The decree-holder on the other hand contended that though the judgment-debtors were agriculturists they were not entitled to the benefit of the provisions of Section 5, U.P. Agriculturists' Belief Act inasmuch as the transaction which was entered into between them was not a transaction by way of loan as defined by the Act. The judgment-debtors in answer to this contention contended that even if the transaction was not one of loan that made no difference because Section 5, U.P. Agriculturists' Belief Act was in terms applicable to any money decree. They therefore contended that even if the decree passed against them was not a decree passed on the basis of a loan or a transaction which was substantially a loan, yet they were entitled to have the decree converted into an instalment de