i962

Sir Cl11111il4l V.

M1hla 41 Sons1 Ud.

Tiu Ct11t111y Spinning

4' M"""fact,,.ing

C.. Lid.

M ui!rol /w J.

IHI

Morch 6t>

. , . . . . . . . ' ,.

SUPREME OOURT REPOR1'S [1962] SUPP.

and that is compenation. It does not expreBBly or by necessary implication keep alive the right tu claim damages under the general law. By providing for compensation in express terms the right tu claim damages under the general law is neceBSarily

ecluded and, therefore, in the face of that clause it is not open to tho appellant to oontend that that right is left unaffected. Thero is thus nu substance in the alternative contention put forward by the learned counsel.

Accordingly we affirm the decree of the High Com t and dismiss the appeal with cost.a.

Appe, al di, siniS&li.

KRISli.J.'i"A PRASAD AND .OTHER~

GAURI KUMAR! D.EVl

(P. B. GA.JK'.SDRAGADKAR, A. K. SARKAR and K. N. w AN CHOO, JJ.)

Bxecution-l'eroonal decree against mortgagor-Mortgaged e•late ieBting in t!.t State-Bjject on claim pendiny-Bihar Land Reform• Act, 19W(Acl 30 oj 1950), s. 4(d).

The appcllan t obtaine<l a preliminary decree, on an anomalous mortgage of a hare in the Zamindari village of Sonchari Mouza in the Patna lJistrict and khudkasht land appertaining to the Mouza, against the mortgaged properties with a direction for a personal decree for the balance and there followed a final mortgage decr<e on 30.9.1947. An application for execution against the mortgaged properties was dismissed on 9.1.1954 as in the meantime the mortgaged pro pcrtics \\hich constituted an estate within the meaning of s. 2(1) of the Bihar Land Reforms Act, 1950, had vested in the State.

Execution was sought personally against the mortgagor I . by attachment and sale of other properties of the mortgagor and it was ultimately ordered by the executing <OUJ t.

The

Patna High Court in revision hi; ld tha! in view of s. 4( d) of the Bihar Land Reforms Act, 1950, the execution petition could not proceed and dismissed it.

On appeal to this Court it was contended that s. 4(d) of the Act prohibited execution only against the mortgaged pro• perty not in respect of the personal decree. It was brought to the notice of this Court that the appellant had preferred a claim under the Act and that the Claim Officer had deter mined a sum of Rs. 58,100/. with interest at 4 per cent as payable to the appellant from the compensation payable on abolition of the Estate.

Held, thats. 24(5) of the Act made the compensation payable on acquisition of the mortgaged estate a kind of sub. stituted security against which the mortgage claim would be enforced under the provisions of the Act. According to the - Scheme of the Act the debts of the proprietors in respect of the estate were to be investigated and adjusted exclusively by the Tribunal under the Act. On a proper construction, s. 4(d) of the Act precluded the executing Court from enforc. ing the direction for a personal tlecrre. for realising the mort gage debt at present ; it could only be done eventually if the realisation from the mortgaged property was found insufficient to satisfy the decree, as in the present case the whole of the mortgaged property was an estate, in respect of which a claim w•s pending.

Lion Insurance Association Ltd. v.

Tucker ( 1883) 12 Q.B.D. I 76, Raghubir v. Basudevanand, (1953) I.L.R. 32 Pat. 581, Mahantli Sukhdeo Das v. Krtshi Prasad Tiwari, A.I.R.

I 958 Pat. 630 and Rana Sheo Ambar Singh v. The Allahabad Bank Ltd .. (1962) 2 S.C.R. 441 referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 352 of 1959.

Appeal from the judgment and decree dated January 8, 1957, of the Patna High Court in Civil

Revision No. 590 of 1955.

L.K. Jha and B. P. Jha, for the appellants.

Sarjoo Prasad and R. a. Prasad, for the respondent.

1962. March 5. The Jqdgment .of tl1e Coqrt

\f!!,~ delivorad by

Kri1hntJ Prasad

Gauri umari Deni

Kris1ma Prosad

Gauri Kumari Dtri

Gaj111dratadk.1r J,

GAJEXDRAGADKAR, J.-This appeal has been brought to this Court with a eertificaro issued by the Patna High Co•irt and it raises as short question about the scope and effect of the provisions of section 4(d) of the Bihar Land Reform Act, 1950 (30 of 1950) (hereinafter called the Act).

The respondent Smt. Gauri Kumari Qcvi along with her husband, Rabu Shyamakant Lal, executed a regis tcrcd anomalous mortgago in favour of the appellants

Babu Krishna Prasad and his three sons on tho

10th of July, 1937, for a sum of Rs. 35,000/-.

The document evidenced a combination of Sudhama' as well as simple mort.agage and the period specified in it was fiv" years. The respondent was the principal mortgagor and by the mortgage deed she mortgaged I 0 annas and S pies Hakiat Milkiat of village Sonch'lri :lfouza o. 11912 in t.he district of Patna which was the Zamindari property and 16.41 acres of khudkasht land appertaining to khata No. 3 of the said Mouza.

The appellants sued on this mortgage to recover Rs. 69,8 HJ/5.!l 7 in the court of the Sub , Judgo at Patna. The said suit ended in a decree in favour of the appeVants on the 26th August,1946.

The trial J ndge ordered that for the satisfaction of the decrctal amount, "tho mortgage properties would bo charged preliminary and if the deerotal amount is not fully satisfied from them, thon alono the respon dont woulrl be pcrsonilly liable for the satisfaction of the balancn, if any." That is how a composite decree ca.me to be passed in the suit. By tho final decreo which followed on the 30th September, 1947, tho respondent'.• liability to pay ltH. 52,!150/3/- waa determined.

The appellants then filed an Execution Case No. 6 of i 9fi2 and claimed that the dAoretal amount should be realised by sale of the mortgaged Zaminclari properties. The respondent raised an objection against. tho appellants' claim on the ground that the mortgaged properties had iD ~'! .

meanwhile vested in the State of Bihar under the provisions of the Act and so, they were not liable to sale in execution proceedings as the respondent had ceased to have any interest in them. Ultimately, the Execution Case filed by the appellants was dismissed on the 9th January, 1954.

When the respondent contested the Execution Case on the ground that the mortgaged properties had vested in the State of Bihar, the appellants applied for transfer of their decree for the exgcu tion to the Ga ya Court. They intimAted to the Court that they wanted to execute the decree against the respondent by proceeding against her properties other than those which were the subject-matter of the mortgage and they alleged that they were entitled so to do by reason of the personal decree which had been passed against her, The application made by the appellants for the transfer of decree was granted and the decree was transferred on the 22nd of January, 1954 with a certificate of non-satisfaction.

The appellants then filed Execution Case No.19 of 1954 in the Court of the Subordinate Judge at Gaya and sought to recover the decretal amount by attachment and sale of other properties belonging to the respondent. In these pro'ceedings, the respondent filed an objection under section 4 7 of Code and it was numbered as Misc. Case No. 96 of 1954.

She urged that the appellants had not obtained a personal decree against her and so, the claim made by them iu their Execution Case was not maintainable.

She also contended that the appellants conld not proceed against her other properties because their remedy was to follow the compensation money which would be given by the State of Rihar to her in lieu of her properties which bad vested in the said State. It appears that on the 23rd December, 1954, the Misc. Case No. 116 of 1954 filed by the respon {lent was allowed ex-parte by the Sub-Judge at Ga!e,

Krishna Prasad v.

Gauri Kumm '.Devi

KriJhna Prasad

v, O"U'i K'w'IJari Dt'Tli

and, in consequence, the Execution Case No. 19 of

1954 filed by the appellants was dismissed.

The appellants then applied for review of tho said ord...r 1md prayed that their Execution Case should be restoroa to file and should be dealt with in accordance with law.

On tho 20th April. 1955, tho Executing Court allowed the appellants' application for revi1iw and held that the appellants had obtained . a personal decree against the respondent and that

they had a right to sell the other properties of tho respondent in execution of the said personal decree., That is how tho Executing Court directed that execution should proceed as prayed for by the appellants.

The respondent challenged this order by preferring a Civil R"lvision Application before the Patna High Court and it. was numbered as 590 of I !l.~5.

The High Court held that a personal decree had been passed in favour of the appellants, though that part of the direction given in the judgment had not been formally incorporated in the decree.

The High Court therefore, rejected the respondent's contention that no personal decree had been passed since an application had not been made by the appellants under Order 34 Rul'l 6 of the C.P.C.

The High Court also rejeeted the respondent's argu. ment that a Review Application did not lie against the first order pass1•d by the Executing Court, though it thought that there was some substance in the contention raised by the respondent that, on the merits, the review need not ha.vo been granted.

Even so, the High Court did not choose to base its decision on this contention. It has allowed the Revision Application on the merits because it has held that the appellants have no right to execute the personal decree by proceeding to sell the other properties of the respondent, for section 4( <l) of. the Act constitutes a ba.r against such proceedings. On this view, the Higb Court allowed the Reviiion Application, set aside the order passed by the Executing . . ..

Court in. favour of the appellants and has ordered that the Executfon Application filed by the appel- 1 ants should be dismissed.

The appellants then applied for and obtained a certificate from the High Court and it is with the said certificate that they have come to this Court; and so, the point which falls to be decided is in regard to the scope and effect of section 4( d) of the Act. We ought to add that the respondent's objection against the competence of the appellants' application for review has not been pressed before us.

Before dealing witb. the said point, it would be convenient to state some material facts.

The first material fact is that all the properties mortgaged by the respondent in favour of the appellants constitute an estate under section 2( 1) of the Act, so that we are dealing with a case where the entire mortgaged proparty belongillg to the mortgagor proptietor has vested in the State of Bihar. It is not a case where part of the properties mortgaged has vested in the Stat, e while some of them continue to be vested ia tne mortg&gor.

The second point which has to be borne in mind in dealing with the present controversy is that the appellants seek to execute the personal decree against the respondent. There is no doubt that under 0. 34 R. 6 of the Code, a personal decree can be passed on an application made by the mortgagee decree-holder only wh, ere the net proceeds of any sale held under 0.34 R. 5 are found to be insufficient to pay the amount due to the decree-holder, that is to say, it is only after the mortgagee decree-hglder has exhausted his remedy against the mortgaged property that he is entitled to apply to recover the balance from the mortgagor judgment-debtor personally otherwise than out of the properties mortgaged. It may be that in th, e. ' . .

196B

Krishna Prasad

Gauri K'umari DevJ

Gajendragadkar J;

196t

Kriahu Pra1aJ

•• Gdttt i K umari Dlfri

Gajtn4ragadk"1 J.

caae of a composite decree, an application as contemplated by 0. 34 R. 6, may not be necessary ; but in that conn<'ction, it may be relevant to bear in mind that under the normal procedure prescribed by 0. 34 R.6, recovery of the ba Janee due under a mortgage decree is ordered on an application by the mortgagee decree-holder where it is shown that the net proceeds of any sale held under the mortgage decree are insufficient to pay the amount due under the decree.

Besides, the order passed by the trial Court in its judgment which has been treated in substance to constitute a personal decree in tho prcsi>nt proceedings, makes the position quite clear. Tho learned Judge directed that for the satisfaction of the decretal amount, the mortgaged properties would be charged prelimin'1ry and he added that if the decretal amount is not fully satisfied from them, thon the appellants would be entitled to proceed against t.hti respondent personally. In othn words, tlie decree clearly and unambiguously provides that the appellants would be justified in executing tho personal decree against the respondent only if and after they have exhausted thcir remedy against the mortgaged properties and have not been abfo tP recover the whole of the decrotal amount by that pro<'ess.

That is tho second material fact which has to be borne in mind.

Then the third fact to which reference must be made is that after the precribed notification was issued and the mortgaged properties belonging to the respondent harl vosted in t be Sta, te of Bihar, the a.ppellants appliml undr Ae<tion 14 of tho Act notifying their claim under tho mortgage <lecrce to the Claims Officer, and, iu fact, on the 24th November, 1956, tho Claims Ofllcer has determined that 1i sum of l{s. 5~.100/- plu" future interest at 4% per annum over tho principal amount only but limited to the total interest uot exceeding the 1uµount of the principal, would be pay-able to thll

appellants out of the oompensation amount payable to the respondent in respeot of' the properties mortgaged. This fact was not known to the respondent at the time when her Revision Application was argued before the High Court, because it appears that the respondent did not appear in the proceedings before the Claims Officer. The said fact has, however, been stated before us by the respondent oh an affidavit and its correctness is not disputed by the appellants. It is in the light of these facts that we have to decide whether the High Court was right in holding that the appellants' application for execution at the present stage is incompetent in view of the provisions of section 4(d) of the Act.

Let us then briefly refer to the relevant pro visions of the Act which would enable us to construe section 4(d) and determine its scope and effect.

As is wellknown, the Act was passed to provide for the transference to the State of the interests of proprietors and tenureholders in land and of the mortgagees and lessees of such interests and to provide for the constitution of a Land Commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the said Government consequent upon such transference and for other matters connected therewith. The object of the Act which is writ large on its provisions was to eliminate the inter mediaries and establish direct relation between the State and the cultivators. This policy has subsequently been adopted in many other States in orrler to bring about the much needed agrarian reform, Section 2(1) defines an "estate" meaning any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district

11, d includes revenue-free land nc;>t entered in anr

1902

Krishna Prasad v, Gauri Kumari Devi

Gajendragadkar J.

, J95Z

1'1ishu Prasad

•• Gaw' E111141i Devi

572 SUPREME OOURT REPORTS [1962] SUPP

register and a share in or of an estate. It is common ground that the mortgaged properties with which we are concerned in the present appeal are an estate under section 2{i).

Similarly, it is common ground that tho respondent is a proprietor as defined in s. 2 (o).

Section 3 enables the State Government to declare from time to time by notification that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State. Tho notification contemplated by s. 3 (I) h&a been issued in respect of the estate in question. Section 4 proscribes the consequences of vesting of an estate or tenure in the State. Broadly stated, the effect of s. 4(a) is that an estate in respect of which a notification has been iS!med shall; with effect from the date of vesting, vest absolutely in the State free from all incumbrances and the proprietor of the said estate shall cease to havP any interests in such estate, other than tho interest expreHsly saved by or under the provisions of tho Act.

That takes us to section 4(d) which provides th<J.t no suit shall lie in any Civil r.ourt for tho recovery of any money due from such proprietor or tenure-holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suitH and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped. It is conceded that s. 4( d) takes in cases where decrees have been passed and that the word "proceedings" used in its latter portion covers execution proceedings.

It is, however, urged that the bar created bys. 4

(d) applies only to execution proceedings which a.re

ts.ken by mortgagees deoree-holders to recover their clecretal amount from estates which have vested in the State and that execution proceedings in which decree-holders seek to recover their decretal dues from properties other than those which

~ve -rested in the Stt\te are outside te iscief

3. s.c.R.

SuPREME cobRT it:i!iPORTS

of s. 4 (d). In other words, Mr. Jha for the appellants contends that the High Court was in error in adopting the broad and literal construction of section 4(d).

Before we deal with this argum1mt, it would be convenient to refer to the other relevant sections of the Act. Section 14(1) prescribes the time. within which a secured creditor has to file his claims. Every creditor, whose debt is secured by a mortgage of an estate, has, within the prescribed time, to .notify in the prescribed manner his claim in writing to the Claims Officer appointed in that behalf. It is the function of the Claims Officer to determine the amount of debt legally and justly payable to each creditor in respect of his claim.

Thus, it is clear that a mortgagee decree-holder has to apply within the specified time before the Claims Officer and that the Claims Officer would . have to determine what is legally and justly due to him. Section 14(3) makes it clear that if the mortgagee decree-holder fails to notify his claim as required by s. 14(1), the. said claim shall be barred, subject to the proviso which it is unnecesary to consider. The effect of section 14\3)., therefore, is that if a claim of the nature referred to in sub section ( 1) is not duly notified to the Claims Officer within the time and in the manner prescribed by the said sub-section, the said claim would be barred.

The penalty for noneompliance with section 14(1) is thus clear. Section 15 requires the creditor to furnish full particulars and do cu ments in support of his claim. Section 16(1) lays down that the Claims Officer shall determine the principal amount justly due to each creditor and interest due at: the date of such determination in respect of such principal amount, the determination, to be made in accordance with the rule1 made under the Act. Section 16(2) prescribes a scheme for the scaling down of the debts due by the judgment-debtor. Clauses (b) and (dl of section 16(2)

Krishnt Prasad

•• Gauri liumari Devi•

Gnjendragodker J.

Krishfla Prasad

•• G1U1Ji Eumtui Dei-i

574 SUPREME COURT REPORTS [1962] sui>i>.

cle11.rly uggest that the policy of the Act, int, er alia, is to give relief to the debtors whoso estates ha vc by operation of the law vested in the State .

Section J 7 providts for an appeal a!(ainst the decision of the 1Claimo Officer to a Board whose constftution is prescribed by section 18( J).

Section 18(3) lays down that the decision of the Board and, where no appeal has been preferred to the Board, the decision of the Claims Officer shall be final.

So, the scheme of Chapter IV which consists of sections 14 to 18 clearly is that all claims based on mortgages relating to estates have to be submitted to the ClaimR Officer and tho amounts duo to the creditors have to be determined in accordance with the principll's laid down by the Act.

Where the whole of the property mortgaged is an estate, there can be no doubt that the prooedure prescribed by Chapter IV has to be followed in order that the amount due to the creditor should he determined by the Claims Officer.

The decision of the Claims Officer or tht1 Board has been made final by the Act.

Chapter V deals with the problem of the asses;; ment of compensation. Section 24 provides for the rates of compensation. Section 24(5} lays down, inter 11lia, that in tho case where the interest of a proprietor is subject to a mortgage, or chiirge, the compellllation shall first be payable to the creditor holding such mortgage or charge and tho balance, if ariy, shall be payable to the proprietor.

It adds that the amount of compensation payable to a.. creditor shall be the amount determined under Chaptor IV which, notwithstanding anything contained in any law for the time being in force, shall not in any case exceed the amount of compansation payable in respect of the eHtato or portion thereof which is subjcet to such mortgage, and where there are two or more such creditors, the compensation shall be payable to

them in the order determined under the said Chapter. This provision is, in a sense, consequential and it provides for the payment of the amount already detrirmined to be justly and legally due to the creditor and so. a claim which is made under section 14 would be determined under section 16 and the amount so determined will be paid under s. 24( 5).

Chapter VI deals with the payment of compensation, and section 32 provides for the manner of its payment. Thus, the seheme of Chapters IV, V & VI is clear. The provisions in the said Chapters constitute an integrated and self-sufficient Code for the determination of the amount due to the creditors in .question and for their payments, and e. section 35 which occurs in Chiipter VIII prescribes a bar to the jurisdiction of Civil Courts in the matters included in it. lJnder this section, no suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment Roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceedings taken under the said Chapters. There can, therefore, be no doubt that the scheme of the Act postulates that where the provisions of the Act apply, claims of creditors have to be submitted before the ()!aims Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting a suit or any other proceedings in the court of ordinary civil jurisdiction .

. It is in the light of this scheme of the Act that we must revert to section 4(b) and determine what its true scope and effect are. Mr. Jha contends that in construing the words of Section 4(d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to

1962 '

Krishna Prasad v.

Gauri Kumari Devi

Gajendragadkar J.

. 1968

K rU/tM Prasad

v. auri Kumivi J)evi

Oajtndrogadl; tw J,

~76 SUPREME COURT REPORTS (1962J StJi>P.

the 3tatc of the interests of thll proprietors and tenure holders in land and of tho mortgagees and lessees of such interesw. lt was not the object of the Act, says Mr. Jha, to extinguish debts due by tho proprietors or tenure hoklers and so, it would be reasonable to confine the operation of s. 4{d) only to tho claims made against the est.ates which have vested in tho State and no others. In our opinion, this argil.mont 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 containnd in section 16 in regard to the Sl'aling down of the debts duo by the proprietors and tenure-holders clearly indicate that another object which tho Act waated to achiove was to give some redress to the dJfitors whose estates have beon taken away from thorn 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 ve,; ted in the Stato.

The relevant clause in section 'i(d) provides that all suits and proceedings for the rcoovcry of any such money which may be pending on the dato of the vesting shall be dropped; and these words are wide enough to include within their sweep exocution prncecdiugs,, even though the recovery of the amount due may have been claimed by the decreo.holder from properities other than those which have vested in the State. The only limitation imposed by the clauee 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 s.4( d) would create a bar even in cases where the compensation amount payable to the mortgagor is insufficient to satisfy the mortgagee decreeholder's claim even to the extent of the amounts scaled down under section 16.

Mr. Jha, however, suggested that rules of grammer should not be allowed to have an overriding effect if it is shown that putting a literal and grammatical construction on the relevant words would lead to unreasonable or anomalous results and in support of this argument, he has invited our attention to the observations made by Brett, M. R. in the case of the Lion Insurance Association LU. v.

Tucker.(!) ''When you construe a statute or document"

observed Brett, M. R., "you do not construe it, according to the mc:re ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject-matter with regard to which they are used, unless there is something what obliges you to 'read them in a sense which is not their ordinary sense in the English language as so applied. That, I take it,.is the cardinal rule.". We 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 decreeholder has to be determined by the Claims Officer

(I) (1883) 12 Q.B.D. 176, 166.

1B62

Kri•hna Pr11s4tl

G'auri Kumori Dea_\

KrisMa PrqsaJ

Oawi Kumeri l)tvi

Oa_itntlragodkttr J.

and the amount so determined has to be paid to the deorec-holder from out of the componsation money payable to the judgment-debtor. Having regard to the said M:heme, it is difficult to conliiw the application of s. 4(d) only to execution proceed ings in which the decree-holder seeks to proceed against the estate of tho debtor. In fact, an exccu tion 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 belong to the judgment-debtor. That being so, we are Hatisfied 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-mortgagee! properties is incompetent at the present stage. The amount duo to the appellants under the decreli in question has been already determined by tho Claims Officer and tbe appellants must first seek to recover that amount as provided by the relevant provisions of the Act before they proceed to exe<:ute the personal decree.

This conclusion follows even on the terms of the decree itseif. We h11vo already socn that the direction issued by the trial Court is explicit and elea.r.

The said direction which is consistent with the provisions of 0. 34 R. 6 would enable the appellants to proceed personally against the respondent only if it is shown that the decreta.l a.mount is not fully satisfied from the prooeeds of the mortgaged property. In the present case, the mortgaged pro

perty cannot be sold because it has vested in tho State free of incumbrance; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and tho appellants are given the statutory right to reoeive the a.mount due to them fr<:m the said compensation a.mount under section 2<(5). This provision is some what similar to tho provision of section 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 thd compulsory acquisition of immoveable 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 section 73(~) of the Transfer uf 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 wHhout taking recourse to the remedy available to them under section 24(5) of the Act.

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, (1) the High Court has held that section 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 ca, se, according to the High Court s. 4 ( d) will be a bar to the suit or execution proceedings so far as the vested estates a.re conmirned, 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

(1) (1953) I.LR. 32, 581.

1962 ---- Kri1hna Pr•sd

Gauri Kumari Dt11 1

Gajendratadkaf' J ,

v. ' G®ri Kurnwi Dec~;

is unnecessary for ue to consider whether the view taken by the Patna High Court in this caso is corr ect or not.

In 1llahanth S'llkltdcu IJrJS v.

Kashi Prasad 'l'iwari ( ') the full Bench of the High Court had occasion to consider whether a mortgagee decreeholder of the interest of the proprietor whose estate has vested in the State, is entitled to pro eecd 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 can not be forced to seek his remedy under section 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 interost of the judgmontdebtor in the bakasht land was one of the interests saved by section 6 and that, in consequence, the bakasht lands continued to remain in tho possession of the ex-proprie tor not in the character of ba.kasht lands but as raiyati lands; and 8incc these lands were a part of the security offered by the mortgage-deed, the decree-holder was entitled to proceed against them without ta.king his remedy undor 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 oC 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.

Jba that this decision also proceeds on the assump tion that the mortgage security consists of an estate which has vested in tho State and of bakasht lands which did not, in substance, vest in tho 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

(I) A.I.R. 1958, Pat. 630.

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 section 6 is inconsistent with the decisions of this Court in Rana Shoo Anwar Singh v.

The Allahabad Banlc Ltd. (1).

His argument is that the provisions of section 6 of the Act correspond to the provisions of section 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 section 18, has shaken the validity of the conclusion of the Full Bench in regard to the effect of section 6 of the Act. We do n.ot 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.

The result is, the order passed by the High Court is confirmed and the appeal is dismissed with costs.

Appeal dismissed.

(I) (1962]2. S.C.R. 441.

196Z

Krishna Prasad. '' .., Gauri Kumari Bevi

Gajendraga<lkar J.