Appeal No 2373 of 1966
Appeal from the judgment and order dated September 1964 of the Bombay High Court Nagpur Bench in Special Civil Appli cation No 471 of 1964
178 CB Agarwala G L Sanghi P N Kukde and A G Ratna parkhi for the appellants Nos 1 2 and 4 to 6
R M Hazarnavis and A G Ratnaparkhi for appellant No3
section T Desai M section Gupta and section K Dhingra for respondent No 1
N section Bindraand section P Nayar for respondents Nos 2 and 3
The Judgment of the Court was delivered by Shah J
Gendalal hereinafter called the mortgage  filed Suit No 11 of 1939 for recovery of the amount due under a deed of mortgage of proprietary rights in certain villages executed in 1929 by Prahlad father of the appellant
A preliminary mortgage decree was passed declaring that Rs 216309119 were due on the mortgage
The decree was made absolute for sale
The mortgage commenced in 1948 proceedings for executing the decree
On March 31 1951 the Madhya Pradesh Abolition of Pro prietary Rights Estates Mahals Alienated Lands Act 1 of 1951 was brought into force
By virtue of section 3 of that Act the proprietary rights of holders of estates mahals alienated villages
and alienated lands stood vested in the State
Chapter IV of the Act provided for determination of debts
The mortgagor Prahlad applied on April 26 1951 to the Claims Officer under section 19 of that Act for determination of the debt due to the mortgagee and for scaling down the debt
The mortgagee contended that the debt had by adjudication of the Court been merged into a decree and there was no secured debt which could be determined or scaled down
The Claims Officer held that there was a debt due to the mortgagee that it was a secured debt and that he had jurisdiction to determine the debt
On November 19 1951 the Claims Officer directed the mortgagee to submit a statement of the claim under section 22 of the Act
Against the order of the Claims Officer the mortgagee appealed to the Board of Revenue
Following the judgment of the Nagpur High Court in Ramkishan vs Board of Revenue Madhya Pradesh1 the Board of Revenue set aside the order holding that the Claims Officer had no jurisdiction to decide the question Whether there was a secured debt and that the Civil Court alone was competent to decide that question
In the execution application filed by the mortgagee the Additional District Judge held that there was a secured debt within the meaning of section 19 read with section 171 of the Act due to the mortgagee under the mortgage notwithstanding the decree passed by the Civil Court
1 ILR 179 On October 3 1955 the High Court of Nagpur in Jethalal Bhawanji vs Prabhakar Sadashiv1 overruled the Judgment in Ramkrishna s case 2   and held that the Claims Officer had jurisdiction to decide whether a debt was a secured debt
The mortgagee then filed on January 23 1958 a statement of his claim
On March 26 1958 the appellant son of the original mortgagor Prahlad contended that the debt stood discharged because the mortgagee had failed to file a statement of his claim as ordered on November 19 1951 by the Claims Officer
By order dated December 24 1962 the Claims Officer upheld the contention of the appellant
Against that order the mortgagee preferred an appeal to the Commissioner Nagpur Division
At the hearing of the appeal the appellant contended that the Commissioner had no jurisdiction to hear the appeal
The Commissioner rejected the contention of the appellant and set aside the order of the Claims Officer discharging the debt
A petition moved by the appellant in the  High Court of Bombay at Nagpur challenging the order passed by the Commis sioner was summarily dismissed
With certificate granted by the High Court this appeal has been preferred
Counsel contended that the mortgagee failed to file a state ment of account pursuant to the order dated November 19 1951 by the Claims Officer and by virtue of section 22 of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1 of 1951 the debt stood discharged
But the order of the Claims Officer holding that there was a secured debt was set aside in appeal by the Board of Revenue
Any proceeding consequent upon that adjudication was in view of the judgment of the Board of Revenue unauthorised
That decision of the Board of Revenue became final between the parties
It cannot be contended that because in another proceeding the High Court of Nagpur expressed the view that the judgment on which the Board of Revenue relied was erroneous the direction of the Claims Officer requiring the mortgagee to file his statement of account was revived and if the directions of the Claims Officer word not complied with the debt due to the mortgagee was discharged
The order of the Claims Officer was reversed by the Board of Revenue and all directions given by the Claims Officer pursuant to his order calling upon the mortgagee to file a statement of his claim stood annulled
The Nagpur High Court in Jethalal Bhawanji s case1 it is true decided that the Claims Officer was competent under section 23 of MP Act 1 of 1951 to determine whether a debt is a secured debt
But the first order of the Claims Officer was annulled by order of the Board of 1 ILR 2 ILR 19541 Nag
180 Revenue and thereafter that officer did not pass any order under section 22 of Act 1 of 1951 directing that the proceeding shall continue and further directing that a notice shall issue calling upon the mortgagee to file a statement of the claim
Until a notice valid in law directing that a statement be filed was served upon the mortgage and he failed to comply with it the debt could not be discharged
Section 22 enacts a penal provision and unless the conditions precedent are satisfied the debt could not by operation of the statute be discharged
The High Court was right in dismissing the petition
The appeal fails and is dismissed with costs


Summary:
A mortgagor applied to the Claims Officer under section 19 of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals and Alienated Lands Act 1 of 1951 for determination of the debt due to the mortgagee and for scaling down the debt
The mortgagee contended that the debt by adjudication of court had been merged into a decree and there was no secured debt which could be determined or scaled down
The Claims Officer held that there was a debt due to the mortgagee that it was a secured debt and that he had jurisdiction for determining the debt and directed the mortgagee to submit a statement of the claim under section 22 of the Act
On appeal by the mortgagee the Board of Revenue following the judgment of the High Court in Ramkishan vs Board of Revenue Madhya Pradesh ILR  held that the Claim Officer had no jurisdiction to decide whether the debt was a secured debt
Upon the High Court overruling Ramkrishna s case in Jethalal Bhawanji vs Prabhakar Sadasiv I  the mortgagee field a statement of his claim before the Claims Officer
The mortgagor contended that the debt stood discharged under section 22 of the Act as the mortgagee had failed to file a statement of his claim as originally directed by the Claims Officer
The Claims Officer upheld the contention
The Commissioner in appeal set aside the order of the Claims Officer discharging the debt and a petition in the High Court against the Commissioner s order was summarily dismissed
Dismissing the appeal to this Court HELD  Section 22 enacts a penal provision and unless the conditions precedent are satisfied the debt could not by operation of the statute be discharged
In the present case the order of the Claims Officer was reversed by the Board of Revenue and all directions given by the Claims Officer pursuant to his order calling upon the mortgagee to file a statement of his claim stood annulled
Thereafter the Claims Officer did not pass any order under section 22 of the Act 1 of 1951 directing that the proceeding shall continue and further directing that a notice shall issue calling upon the mortgagee to file a statement of the claim
Until a notice valid in law directing that a statement be filed was served upon the mortgagee and he failed to comply with it the debt could not be discharged
179 G 180 B