Case: Krishna Prasad And Others Vs. Gauri Kumari Devi

terms of the decree itself. We have already seen that the direction issued by the trial Court is explicit and clear. The said direction which is consistent with the provisions of O. 34 R. 6 would enable the appellants to proceed personally against the respondent only if it is shown, that the decretal amount is not fully satisfied from the proceeds of the mortgaged property. In the present case, the mortgaged property cannot be sold because it as vested in the State free of incumbrances; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and the appellants are given the statutory right to receive the amount due to them from the said compensation amount under S. 24(5). This provision is somewhat similar to the provisions of S. 73(2) of the Transfer of Property Act which provides, inter alia, that where the mortgaged property is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation. In a sense, the compensation amount payable to the respondent may prima facie be treated to be like a security substituted in the place of the original mortgaged property under S. 73(2) of the Transfer of Property Act. However that may be, the terms of the decree require that the appellants must first seek their remedy from the said compensation amount before they can proceed against the non-mortgaged property of the respondent. The relevant directions in the decree do not justify the appellants contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under S. 24(5) of the Act. 18. It now remains to refer to some decisions of the Patna High Court to which our attention was drawn during the hearing of this appeal. In Raghubir v. Basudevanand, ILR 32 Pat 581, the High Court has held that S. 4(d) of the Act is not applicable to a case where money is secured by a mortgage or charge on estates, some of which are notified under Section 3 of the Act and the others are not notified. In such a case, according to the High Court, S. 4(d) will be a bar to the suit or execution proceedings so far as the vested estates are concerned, but the creditor will be entitled to prosecute the suit or execution proceedings as regards the estates or portions of estates which are not vested in the State. Since we are dealing with a case where the whole of the mortgaged property is an estate, it is unnecessary for us to consider whether the view taken by the Patna High Court in this case is correct or not. 19. in Sukhdeo Das v. Kashi Prasad Tiwari, AIR 1958 Pat 630 , the Full Bench of the High Court had occasion to consider whether a mortgagee decree-holder of the interest of the proprietor whose estate has vested in the State, is entitled to proceed against the Bakasht lands of the proprietor comprised in the said estate for recovery of the amount due to him under the mortgage decree, and it was held that in such a case. the mortgagee cannot be forced to seek his remedy under S. 14 and to satisfy his mortgage debt out of the compensation payable under the Act. It appears that the Full Bench was inclined to take the view that the interest of the judgment-debtor in the bakasht lands was one of the interests saved by S. 6 and that, in consequence, the bakasht lands continued to remain in the possession of the ex-proprietor not in the character of bakasht lands but as raiyati lands, and since these lands were a part of the security offered by the mortgage-deed, the decree-holder was entitled o proceed against them without taking his remedy under Section 14 of the Act. This conclusion was based on the view that the effect of S. 4 (d) read with Sections 3 and 6 of the Act was not to destroy the mortgage in its entirety but only with respect to that part of the estate which had vested absolutely in the State and no interest therein is left with the mortgagor proprietor or tenure-holder. It is conceded by Mr. Jha that this decision also proceeds on the assumption that the mortgage security consists of an estate which as vested in the State and of bakasht lands which did not, in substance, vest in the State but continued with the mortgagor as raiyati lands. Therefore, it is not necessary for us to examine the merits of the conclusion reached by the Full Bench in this case. It may, however, be not out of place to add incidentally that Mr. Sarjoo Prasad for the respondent has suggested that the assumption made by the Full Bench about the character of the bakasht lands by virtue of the provisions of S. 6 is inconsistent with the decisions of this Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., AIR 1981 SC 1790. His argument is that the provisions of Section 6 of the Act correspond to the provisions of S.18 of the U. P. Zamindari Abolition and Land Reforms Act (I of 1951) and that what this Court has said about the effect of the provisions of S. 18, has shaken the validity of the conclusion of the Full Bench in regard to the effect of Sec. 6 of the Act. We do not think, it necessary to consider this point as well in the present appeal. In any case both the decisions on which Mr. Jha has relied afford no assistance to us in dealing with the point with which we are concerned in the present appeal.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified. But as we have already seen, the provisions contained in Section 16 in regard to the scaling down of the debts due by the proprietors and tenure-holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued under Section 3. Therefore, in construing S. 4(d), it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act. Mr. Jha fairly conceded that if the words used in S. 4(d) are literally construed and they are given their natural grammatical meaning, it would not be easy to limit the operation of S. 4(d) to execution proceedings where relief is claimed against the properties which have vested in the State. The relevant clause in S. 4(d) provides that all suits and proceeding for the recovery of any such money which may be pending on the date of the vesting shall be dropped; and these words are wide enough to include within their sweep execution proceedings, even though the recovery of the amount due may have been claimed by the decree-holder from properties other than those which have vested in the State. The only limitation imposed by the clause is that the execution proceedings should be for the recovery of any such money---meaning any money due from the proprietor on the strength of a mortgage executed by him in respect of an estate. We have already emphasised that in the present case, the whole of the mortgaged property is an estate and, therefore, it is unnecessary for us to consider what would be the effect of the provisions of S. 4(d) in cases where part of the mortgaged property is an estate and part is not. It is also unnecessary to consider whether Section 4(d) would create a bar even in cases where the compensation amount payable to the mortgagor is insufficient to satisfy the mortgagee decree-holders claim even to the extent of the amounts scaled down under S. 16We do not see how this principle can assist Mr. Jha in the present case. The scheme of the relevant provisions of the Act to which we have already referred unambiguously suggests that where the whole of the mortgaged property is an estate, certain consequences follow. The decree-holder has to make a claim; the claim has to be enquired into by the Claims Officer; the amount due to the decree-holder has to be determined by the Claims Officer and the amount so determined has to be paid to the decree-holder from out of the compensation money payable to the judgment-debtor. Having regard to the said scheme, it is difficult to confine the application of S. 4(d) only to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belongs to the judgment-debtor. That being so, we are satisfied that on the facts of this case, the High Court was right in holding that the application made by the appellants to execute the decree against the respondent by proceeding against her non-mortgaged properties is incompetent at the present stage. The amount due to the appellants under the decree in question has been already determined by the Claims Officer and the appellants must first seek to recover that amount as provided by the relevant provisions of the Act before they proceed to execute the personal decree17. This conclusion follows even on the terms of the decree itself. We have already seen that the direction issued by the trial Court is explicit and clear. The said direction which is consistent with the provisions of O. 34 R. 6 would enable the appellants to proceed personally against the respondent only if it is shown, that the decretal amount is not fully satisfied from the proceeds of the mortgaged property. In the present case, the mortgaged property cannot be sold because it as vested in the State free of incumbrances; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and the appellants are given the statutory right to receive the amount due to them from the said compensation amount under S. 24(5). This provision is somewhat similar to the provisions of S. 73(2) of the Transfer of Property Act which provides, inter alia, that where the mortgaged property is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation. In a sense, the compensation amount payable to the respondent may prima facie be treated to be like a security substituted in the place of the original mortgaged property under S. 73(2) of the Transfer of Property Act. However that may be, the terms of the decree require that the appellants must first seek their remedy from the said compensation amount before they can proceed against the non-mortgaged property of the respondent. The relevant directions in the decree do not justify the appellants contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under S. 24(5) of the Act18. It now remains to refer to some decisions of the Patna High Court to which our attention was drawn during the hearing of this appeal. In Raghubir v. Basudevanand, ILR 32 Pat 581, the High Court has held that S. 4(d) of the Act is not applicable to a case where money is secured by a mortgage or charge on estates, some of which are notified under Section 3 of the Act and the others are not notified. In such a case, according to the High Court, S. 4(d) will be a bar to the suit or execution proceedings so far as the vested estates are concerned, but the creditor will be entitled to prosecute the suit or execution proceedings as regards the estates or portions of estates which are not vested in the State. Since we are dealing with a case where the whole of the mortgaged property is an estate, it is unnecessary for us to consider whether the view taken by the Patna High Court in this case is correct or notIn any case both the decisions on which Mr. Jha has relied afford no assistance to us in dealing with the point with which we are concerned in the present appeal.