Bose, J—This reference is occasioned by a difficulty which the Relief of Indebtedness Act raises. It is a difficulty envisaged in several decisions of this Court. Dau Balwantsingh v. Bindabai, 1942 AIR(Nag) 88; Bapurao v. Bulakidas, 1944 AIR(Nag) 225 and Radhakishandas v. Dwarkadas are samples. A similar difficulty was felt under the Debt Conciliation Act in Premlal Mannulal Parwar v. Jiwan,1937 20 NLJ 25 and in Chanaram v. Balbhadrasai, 1938 AIR(Nag) 42. These latter cases are referred to in Dau Balwantsingh v. Bindabai, 1942 AIR(Nag) 88 The question at this stage is one of jurisdictions and the point is whether the civil Court has jurisdiction to proceed with the present case. The problem is this.

2. The Relief of Indebtedness Act was passed, as its preamble shows, ''to relieve agriculturists from indebtedness.'' It was not intended to enable non-agriculturists, and those whose incomes were above a certain level, to escape their liabilities. This at once raises the question, what is to happen when two persons, one an agriculturist and the other not, are bound by a joint liability? Can the right of the agriculturist to obtain a scaling down of his debt under the Act relieve the other of his responsibility? Sen J. who made the reference, felt unable to reconcile the rule which makes a mortgage indivisible with the earlier rulings of this Court. Our real problem centres round that.

3. The facts of the case, so far as they are relevant for this reference, are as follows. A genealogical tree will be necessary. I take the one given in the order of reference. ( See genealogical tree on page 63.)

4. On 5-5-1927, the three brothers Manglu, Bisambhar and Hardas executed a simple mortgage in favour of the plaintiffs for Rs. 5650. The property mortgaged was a 10 as. 8 pies share of Mouza Deoda. On 24-4-1939, the mortgagees sued on their mortgage. They impleaded as defendants all the persons shown as applicants in the tree, that is to say, all except Rajan, Bisambhar and Kambal who were dead. The first hearing was on 7-8-1939. Behari (defendant 12) was absent as were three others, and the case proceeded ex parte against them.

5. On 21-10-1939, the defendant Hardas put in an application under Section 5, Relief of Indebtedness Act, 1939, asking for a stay of proceedings to enable him to go to the Debt Relief Court under Section 6. The suit was stayed and a time limit of 90 days was given under Section 5(1). As the application was not made within the 90 days, the applicants are precluded by Section 5(2) from applying again. RAJAN Manglu (A. 2) Bisambhar (d) Hardas (A. 1) Kambal Rambux Billa Moji Behari Ratan Ramji Ramlal (A. 3) (A. 4) (A. 5) (A. 11) (A. 12) (A. 13) (A. 14) Chotelal (A. 6) Bistaram (A. 15) Jhanku Todar Bisahu| (A. 7) (A. 8) (d) Chinta (A. 10) Bondru (A. 9)

6. It is to be observed that the application purported to be on behalf of Hardas and Manglu but was signed by Hardas alone. It was countersigned by Mr. Bhattacharya, who represented defendants 1, 2, 4 and 5, and was presented by Manglu. It is not clear how many of the defendants were precluded from applying again but it is certain that Hardas was.

7. The case then proceeded and issues were framed on 19-8-1940. Evidence was taken and in due course a preliminary decree for sale was passed on 23-11-1940, for Rs. 13,573-9-0. The decree was against all the fifteen defendants. Bisahu died before this and was struck off on 9-8-1940. 23-5-1941 was the date fixed for payment. No payment was made and accordingly the plaintiffs applied for a final decree on 30-6-1941.

8. Before the decree could be made final, the defendant 12, Behari, applied to the Debt Relief Court under Section 6(1), Relief of Indebtedness Act, on 5-8-1941, and the proceedings in the civil Court were stayed on 15-9-1941.

9. The order of reference states that the Debt Relief Court allowed amendment of the application on 14-11-1941, and permitted other debtors to be shown as non-applicants. This is a mistake. Amendm