JUDGMENT

Ghulam Hasan, J - This is a judgment-debtor's second appeal. The facts giving rise to this appeal are as follows: In 1931 Swami Dayal mortgaged the property in dispute to one Sri Dutt Brahmachari. The mortgagee died and upon his death his widow sold the mortgagee rights in 1937 to Durga Prasad. Durga Prasad brought a suit for foreclosure on the basis of the mortgage and obtained a preliminary decree in 1938. The decree-holder applied for final decree on 7th May 1940. On 30th May, the judgment-debtor applied for stay of proceedings under Section 8, Temporary Postponement of Execution of Decrees Act, 1937 (Act No. 10 of 1937) on the ground that he was an agriculturist. He also asked for time to pay up the decretal amount by instalments. The learned Munsif rejected the application holding that Section 3 of the Act dealt with the stay of all proceedings in execution of decree for foreclosure and not with the stay of passing the decree itself. He rejected the application for stay but granted time for payment of the decretal amount till 30th July. No money was paid and the decree was made absolute on 30th July. On 16th August the decree-holder applied for dakhal dehani. The judgment-debtor applied on 13th September for stay of the dakhal dehani proceedings and for cancellation of the warrant of dakhal dehani. The learned Munsif rejected the judgment-debtor's application holding that he was not an agriculturist.

2. The lower appellate Court set aside this decision and allowed the appeal, cancelling the dakhal dehani proceedings. This order was passed on 28th February 1941. The judgment-debtor thereupon filed an application on 3rd March 1941, under Sections 9 and 10, U.P. Debt Bedemption Act. The lower Court held that the provisions of the Debt Redemption Act did not apply to him as the decree had already been made absolute. This view was upheld by the lower appellate Court. Hence the second appeal. It may also be mentioned that on 17th April 1941, the judgment-debtors' application, dated 18th September, was taken up and dismissedin the appellant's absence--the Court holding that the U.P. Act 10 of 1937 was no longer in force and had been, repealed.

3. It is conceded by learned Counsel for the appellant that the decision in Harcharan Singh v. Mohammad Husain Khan, A.I.R. 1943 Oudh. 241 is conclusive against his client. This decision lays down that when a final decree for fore, closure is passed, no liability on the part of the judgment-debtor to pay the amount remains and the decree cannot be amended under the U.P. Debt Redemption Act. Section 8 of the Act contemplates that the liability of the judgment-debtor must subsist at the time of his application for amendment under this section. I agree with this view. As the foreclosure decree was made absolute in July 1940' while the Debt Redemption Act came into force on 1st January 1941, the provisions of the Act did not benefit the appellant. It is, however, contended for the appellant that the final decree for foreclosure passed on 80th July 1940, is a nullity as the Court was bound to stay the proceedings under Act 10 of 1937 and not having done so, his order making the decree absolute is a nullity. Reference is made to Mt. Shushila v. Dwarka v. Dwarka Prasad, A.I.R. 1936 Oudh. 106 where it was held in a case under the Encumbered Estates Act that the order of the Deputy Commissioner forwarding the case to the Special Judge under Section 6 of the Act automatically brought into operation the consequences set forth in Section 7(1)(a) of the Act and a mortgage decree made final after that date can be set aside under the provisions of Section 151, Civil P.C. This case has no bearing upon the facts of the present case. I cannot accept the contention advanced on behalf of the appellant that the ' order dated 30th May 1940, refusing to stay proceedings under Section 3 of Act 10 of 1987, was without jurisdiction. Section 8 clearly lays down that the proceedings which are to be stayed du