Case: Rajkumari Kaushalya Devi Vs. Bawa Pritma Singh And Another

as an unsecured creditor in relation to the debt, in which case the provisions of the Act would apply accordingly. It was urged that this sub-section requires that a creditor must make an election before he can take the benefit of this Act. We are of opinion that this argument has no force, for sub-s. (5) of S. 16 only deals with a situation which arises where the mortgage, charge or lien was on immovable property situate in West Pakistan. It does not deal at all with cases where the mortgage, charge or lieu is on immovable property situate outside West Pakistan.7. Reference was then made to S. 17 of the Act. It deals with debts secured on movable properties. That section is again concerned with displaced debtors and provides how equities will be worked out between a displaced debtor and his creditor with respect to debts secured on movable property.We see nothing in this section which can cut down the amplitude of the words used in S. 2 (6) (c).8. Reference was then made to S. 21 which provides for scaling down debts.That is however a general provision dealing with debts of all kinds and there is nothing in that section which shows that the word "debt" as defined in S. 2(6) refers only to claims for money and does not include a mortgage debt.9.Thus we see nothing in any provision of the Act or in its scheme which would cut down the meaning we have given to the words "pecuniary liability" as used in S. 2(6) read with sub-cl. (c) thereof.10. It was also urged that if mortgage debts on property situate in India were covered by the Act, there is no machinery (like S. 16) for enforcement of the creditors rights in respect thereof. This is not correct. Section 10 provides for the claim of a displaced creditor against a displaced debtor and S. 13 provides for the claim of a displaced creditor against any other person who is not a displaced debtor. Section 11 then provides how an application under Section 10 will be dealt with and under sub-s. (2) thereof a decree can be passed under certain circumstances against the displaced debtor. Similarly under S. 14(2) a tribunal can pass such decree in relation to an application under S. 13 as it thinks fit. These decrees are executable under S. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of course this provision is different from the provision contained in S. 16, which was dealing with the special situation of properties under mortgage situate in West Pakistan.11. We may also refer to S. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws.12. The last contention on behalf of the appellant is that if S. 2 (6) (c) empowers a displaced creditor to make an application under S. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act. Section 13 empowers a displaced person claiming a debt from any other person who is not a displaced person to apply within one year of the coming into force of the Act in any local area to the tribunal having jurisdiction in the matter. The provision is obviously enacted to give relief for a short period only. Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions contained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder. But assuming that in spite of this provision, O. XXXIV. R. 1 of the Code of Civil Procedure will not apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by O. XXXIV. R. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act. Explanation to O. XXXIV, R. 1 shows that a prior mortgagee need not be made a party to a suit for sale by a puisne mortgagee. So far therefore as a prior mortgagee is concerned, his rights will not be affected by the decree passed under S. 13 of the Act, just as his rights are not affected by the decree passed under O. XXXIV. So far as mortgagees subsequent to the displaced creditor who applies under S. 13 are concerned, their interests will also not be jeopardized by the decree which may be passed under S. 13. Even under O. XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was not joined as a party does not affect his rights and the proceedings in such a suit are not binding on him so as to affect his rights under the second mortgage. He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was not a party. Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would not be affected by a decree passed on an application under S. 13 and there is no reason therefore to cut down the plain meaning of the words used in s. 2 (6) (c) on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees.

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

Explanation:
0[ds]We are of opinion that there is no force in this contention.The words "pecuniary liability" will cover any liability which is of a monetary nature. Now the definition of a mortgage in S. 58 of the Transfer of Property Act, No. 4 of 1882, shows that though it is the transfer of an interest in specific immovable property,the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The money advanced by way of loan, for example, which is secured by a mortgage, obviously creates a pecuniary liability.It is true that a mortgage in addition to creating the pecuniary liability also transfers interest in the specific immovable property to secure that liability; none the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage. Therefore a mortgage debt would create a pecuniary liability upon the mortgagor and would be covered by the definition of the word "debt" in S. 2 (6).We may in this connection refer to the Displaced Persons (Institution of Suits) Act, No. XLVII of 1948, which has been practically repealed by the Act. In that law, suits relating to immovable property were specially excepted under s. 4, but there is no such provision in the Act. Again S. 6 of the Displaced Persons (Legal Proceedings) Act, No. XXV of 1949, which has also been repealed by the Act mentions decrees or orders for payment of money while in S. 15 of the Act which deals with the same matter those words are omitted and the words "proceedings in respect of any debt" are used instead. There can be no doubt in consequence that the Act is a comprehensive law dealing with all kinds of pecuniary liability.We are therefore of opinion that S. 2(6) clearly includes a mortgage debt and under sub-clause (c) thereof a displaced person to whom such a debt is due from any other person, whether a displaced person or not, ordinarily residing in the territories to which the Act extends can take the the benefit of thiscounsel for the appellant in the first place refers to sub-cl. (b) of S. 2 (6) in this connection and points out that that sub-clause specifically deals with mortgage debts secured on any immovable property situate in the territories forming part of West Pakistan. It is urged that there was a specific provision with respect to mortgage debts in relation to immovable properties in West Pakistan and that if it were intended that mortgage of immovable properties situate in what is now India would also be dealt with under the Act there would have been a similar specific provision in the Act. Further it is pointed out that the proviso to sub-cl. (b) to S. 2 (6) provides for apportioning the mortgage debt in cases where the property on which the debt is secured is both in West Pakistan and in India and restricts the application of sub- cl. (b) only to that part of the debt which was secured on the property in West Pakistan and thus excludes from the operation of sub-cl. (b) that part of the debt which is secured on property in India. That is undoubtedly so. The reason however for this special provision is to be found in the later provision contained in S. 16 by which a charge was created on compensation to be given to a displaced person with respect to the mortgage debt secured on immovable property in Pakistan or in the alternative a charge was created on property given in exchange for the property in Pakistan on which the debt wasspecial provision therefore in sub-cl. (b) of S. 2 (6) would not in these circumstances cut down the plain meaning of the words used in sub-cl. (c) or restrict the wide words "pecuniary liability" to liability other than that secured by a mortgage.Incidentally we may mention that sub-cl. (b) itself shows that pecuniary liability includes a mortgage debt, for it shows that any liability which was incurred on the security of any immovable property situate in West Pakistan would be a debt within the meaning of S. 2 (6) and therefore a pecuniary liability.5.It is next urged that when the legislature excepted the property in India which was encumbered from being dealt with under sub-cl. (b) so far as displaced debtors were concerned, there is no reason why it should allow the displaced creditors to proceed under the Act with respect to mortgage debts. This argument, however, overlooks the provision in sub-cl. (a) under which a displaced debtor can take the benefit of the Act, once it is held that the words "pecuniary liability" also include mortgage debt. As we have said before sub-cl. (b) was dealing with a special situation which was worked out in S. 16 of the Act and the general right of a displaced debtor to take advantage of the Act is to be found in sub-cl. (a) and that sub-clause will cover a mortgage debt as it is a pecuniary liability.It was also urged that if mortgage debts on property situate in India were covered by the Act, there is no machinery (like S. 16) for enforcement of the creditors rights in respect thereof. This is not correct. Section 10 provides for the claim of a displaced creditor against a displaced debtor and S. 13 provides for the claim of a displaced creditor against any other person who is not a displaced debtor. Section 11 then provides how an application under Section 10 will be dealt with and under sub-s. (2) thereof a decree can be passed under certain circumstances against the displaced debtor. Similarly under S. 14(2) a tribunal can pass such decree in relation to an application under S. 13 as it thinks fit. These decrees are executable under S. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of course this provision is different from the provision contained in S. 16, which was dealing with the special situation of properties under mortgage situate in West Pakistan.11. We may also refer to S. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws.12. The last contention on behalf of the appellant is that if S. 2 (6) (c) empowers a displaced creditor to make an application under S. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act. Section 13 empowers a displaced person claiming a debt from any other person who is not a displaced person to apply within one year of the coming into force of the Act in any local area to the tribunal having jurisdiction in the matter. The provision is obviously enacted to give relief for a short period only. Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions contained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder. But assuming that in spite of this provision, O. XXXIV. R. 1 of the Code of Civil Procedure will not apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by O. XXXIV. R. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act. Explanation to O. XXXIV, R. 1 shows that a prior mortgagee need not be made a party to a suit for sale by a puisne mortgagee. So far therefore as a prior mortgagee is concerned, his rights will not be affected by the decree passed under S. 13 of the Act, just as his rights are not affected by the decree passed under O. XXXIV. So far as mortgagees subsequent to the displaced creditor who applies under S. 13 are concerned, their interests will also not be jeopardized by the decree which may be passed under S.Even under O. XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was not joined as a party does not affect his rights and the proceedings in such a suit are not binding on him so as to affect his rights under the second mortgage. He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was not a party. Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would not be affected by a decree passed on an application under S. 13 and there is no reason therefore to cut down the plain meaning of the words used in s. 2 (6) (c) on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees.