# Indrapal Defendant v. Shankar Lal Plaintiff

- **Citation:** (2002) 1 ILRA 189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-12-18
- **Case number:** Second Appeal No. 798 of 2001
- **Bench:** J.C. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indrapal-defendant-v-shankar-lal-plaintiff-39772
- **Pages:** 4

## Headnote

Act 1964 - Section 22 - Agreement to
Sale - the land already mortgage with
Bank stood redeemed after repay of
entire amount of loan suit for specific
performances - both the Courts below
recorded concurrent findings to the
effect - held - section 22 (i) has no
application.

Held - Para 9

As already pointed out above both the
courts below have recorded concurrent
findings that in the present case the
mortgage made in favour of the bank
stood discharged on account of entire
amount of loan with interest thereon
having been paid to the bank. In view of
this findings bar created by Section 22
stood removed and thus there was no
legal
Impediment
in
enforcing
the
agreement in question. Sub section (2)
of Section 22 has no application to the
facts of the present case as no lease was
granted nor rights created by virtue of
the
agreement
in
question
in
contravention
of
sub-section
(1)
of
Section 22.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
190

## Text

1All] Indrapal V. Shankar Lal
189
instance of the decree holder, his legal
representative, after his death need not
make a fresh application for execution
and it is sufficient that they apply for
continuation of the proceedings in the
pending execution.
(under-lined by me)

7. The other decision relevant to the
point is of the Division Bench decision of
Calcutta High Court in Smt. Raj Lakshmi
Dassi vs. Bonomali and others AIR 1955
Calcutta, Page 573. In this case the
judgment-debtor had died during the
pendency of the execution. His legal
representatives were not brought into
record. It was held that the Court cannot
proceed with the execution.

8. This principle will equally apply
to the decree holder. Therefore, the
execution cannot proceed till the heirs of
the decree holder are brought on record in
her place.

9. In view of this, the other points
raised in this revision do not require
decision at this stage. The revision is,
therefore, fit to be allowed.

10. The revision is, accordingly,
allowed and the impugned order is
quashed. The matter is sent back to the
Executing
court
who
will
provide
opportunity for substitution of the heirs of
deceased decree holder and thereafter
shall proceed with the execution in
accordance with law and shall also decide
the objections of the present revisionists
according to law.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2001

BEFORE
THE HON'BLE J.C. GUPTA, J.

Second Appeal No. 798 of 2001

Indrapal
...Defendant-Appellant.
Versus
Shankar Lal ...Plaintiff-Respondent

Counsel for Appellant:
Sri Faujdar Rai
Sri Chandra Kumar Rai

Counsel for the Respondents:
Sri H.P. Tripathi

Cooperative Land Development Banks
Act 1964 - Section 22 - Agreement to
Sale - the land already mortgage with
Bank stood redeemed after repay of
entire amount of loan suit for specific
performances - both the Courts below
recorded concurrent findings to the
effect - held - section 22 (i) has no
application.

Held - Para 9

As already pointed out above both the
courts below have recorded concurrent
findings that in the present case the
mortgage made in favour of the bank
stood discharged on account of entire
amount of loan with interest thereon
having been paid to the bank. In view of
this findings bar created by Section 22
stood removed and thus there was no
legal
Impediment
in
enforcing
the
agreement in question. Sub section (2)
of Section 22 has no application to the
facts of the present case as no lease was
granted nor rights created by virtue of
the
agreement
in
question
in
contravention
of
sub-section
(1)
of
Section 22.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
190
(Delivered by Hon'ble J.C. Gupta, J.)

1. Heard Sri Faujdar Rai for
defendant - appellant and Sri H.P.
Tripathi for plaintiff - respondent.

2. This second appeal is by
defendant against whom respondent filed
suit for specific performance of an
agreement of sale of plot no. 74 situated
in village Dharamapur Abdalpur pergana
and Tehsil Soraon, district Allahabad.
According to the plaintiff's case the said
agreement was executed by appellant and
he had received a sum of Rs.4,800=00 as
earnest
money
and
balance
of
Rs.4,000=00 was paid before sub-registrar
at the time of registration of agreement.
He was always willing to perform his part
of contract but the defendant was not
coming forward to execute the sale deed,
hence plaintiff sent registered notice dated
26.02.1985 whereupon defendant refused
to execute the sale deed. Left with no
alternative, plaintiff-respondent filed the
present suit.

3. In his written statement defendantappellant denied the execution of the
agreement and further took a plea that
since the property in question stood
mortgaged with U.P. Sahkari Land
Development Bank, the property in
question could not be transferred in
favour of the plaintiff on account of bar
created
under
Section
22
of
the
Cooperative
Land
and
Development
Bank, Act 1964.

4. On appraisal of evidence the trail
court recorded a categorical finding of
fact that the agreement was executed by
the defendant-appellant in favour of
plaintiff-respondent.
Defendant
filed
appeal and during the pendency of appeal
an additional issue was framed whether
the property in dispute was mortgaged in
the year 1981 by defendant in favour of
U.P. Sahkari Land Development Bank,
Soraon Branch and if so whether
mortgage was still existing. If so, what
was its effect. The issue was then remitted
to the trail court for giving a finding
thereon. After recording evidence of the
parties the trail court decided the said
issue holding that the property in dispute
was of course mortgaged with the said
Bank by the defendant but the mortgage
stood redeemed as the entire loan
alongwith interest has been paid to the
bank.

5. The lower appellate court on
receiving
the
said
finding
invited
objections of the parties and by the
impugned judgment dismissed the appeal.

6. Learned counsel for the appellant
firstly submitted that as far as issue of
execution of agreement in question is
concerned the trail court gave a cryptic
finding. On going through the judgment
of the trail court, I do not agree with the
submission of the learned counsel. It is
also significant to note that before the
lower appellate court learned counsel for
the appellant made a concession that
execution of agreement in question was
not disputed. Be that as it may, it would
further appear from the judgment of the
lower appellate court that the learned
Judge despite the above concession went
through the evidence of the parties and
affirmed the finding of the trail court that
the agreement in question was duly
executed by the defendant-appellant.

7. The second submission made
before this Court by the learned counsel
for the appellant is that once the trail court
1All] Indrapal V. Shankar Lal
191
had recorded a finding on the remitted
issue that the property in question had
been mortgaged by the defendant, the
agreement
in
question
was
not
enforceable in view of the provisions of
Section 22 of the U.P. Cooperative Land
Development
Banks
Act,
1964
(hereinafter referred to as the 'Act').

A perusal of the order of the trail
court deciding the remitted issue would
further indicate that on the basis of
evidence on record the court also had
come to the conclusion that the property
which was mortgaged earlier stood
discharged on account of payment of loan
with interest to the Bank.

8.

Before
appreciating
the
submission of the learned counsel for the
appellant it may be relevant to mention
here that the U.P. Cooperative Land
Development Banks Act 1964 was
amended from time to time by U.P. Act
No. 27 of 1978, No. 3 of 1979, No. 16 of
1989 and NO. 19 of 1994. The long title
of the Uttar Pradesh cooperative Land
Development Banks Act, 1964 was
substituted with the words 'U.P. Sahkari
Krishi and Gram Vikas Banks' Act
Amended Section 22 of the said Act reads
as under:

"22. Restriction on mortgagors'
power to lease or to create other rights in
the mortgaged and charged property. -
Notwithstanding anything containecd in
the Transfer of Property Act, 1882, or any
other law for the time being in force no
property in respect of which a charge,
hypothecation or mortagage has been
made in favour of a (Gram Vikas Bank) or
the (Uttar Pradesh Gram Vikas Bank)
shall be sold or otherwise transferred by
the
person
making
the
charge,
hypothecation or mortgage until the
entire amount of loan or advance taken by
him from the (Gram Vikas Bank) or the
(Uttar
Pradesh
Gram
Vikas
Bank)
together with interest thereon is paid to
the Bank and any transaction made in
contravention of this section shall be
void:

Provided that, if a part of the amount
borrowed by a member is pai9d, the
(Uttar Pradesh Gram Vikas Bank), or as
the case may be, the (Gram Vikas Bank)
with the approval of the (Uttar Pradesh
Gram Vikas Bank) may, on application
from the member release from the
mortgage,
charge
or
hypothecation
created or made in favour of the bank,
such part of the property or interest
therein as it may deem proper with due
regard to the security of the balance of
the amount remaining outstanding from
the member.

(2) Any lease granted or rights
created in contravention of the provisions
of sub-section (1) shall be void."

9. A perusal of the above provision
will indicate that sub-section (1) thereof
creates a bar in respect of transfers made
by the person whose property has been
hypothecated or mortgaged with the bank.
This bar however is not absolute for all
time to come in as much as the bar gets
removed as soon as the entire amount of
loan or advance taken by the person
concerned together with interest thereon
is paid to the bank. As already pointed out
above both the courts below have
recorded concurrent findings that in the
present case the mortgage made in favour
of the bank stood discharged on account
of entire amount of loan with interest
thereon having been paid to the bank. In
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
192
view of this finding bar created by
Section 22 stood removed and thus there
was no legal impediment in enforcing the
agreement in question. Sub-section (2) of
Section 22 has no application to the facts
of the present case as no lease was
granted nor rights created by virtue of the
agreement in question in contravention of
sub-section (1) of section 22.

10. For the above reasons, this
appeal is dismissed as no substantial
question of law is involved therein.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Second Appeal No. 2218 of 1985

Allahabad
Development
Authority,
Allahabad and others

...Appellants
Versus
Sri Ram Prakash Pandey and others

 ...Respondent

Counsel for the Appellants:
Sri Ashok Mohiley

Counsel for the Respondents:
Sri K.N. Tripathi
Sri Vinod Mishra
Sri A.S. Diwaker

U.P. Urban Planning and Development
Act 1973 - Section 27 Jurisdiction of civil
court - applications for section of map -
remained pending - Notice to raise the
construction given - not replied -
construction
raised
with
Notice
-
Demolition order - without Notice w/o
opportunity of hearing - held - illegal,
suit is only the proper remedy.

(Delivered by Hon'ble B.K. Rathi, J.)

1. The respondent no. 1 filed the suit
against the appellants and respondent no.
2 for injunction to restrain them from
demolishing the house in dispute no. 33/2
Stanley Road, Allahabad. It is contended
that the respondent no. 1 purchased plot
no. 36 from Hari Mohan Tandon on
03.12.1980. He submitted a plan for
sanction for construction of the house
before the appellant on 14.09.1981. It was
not
sanctioned
and,
therefore,
the
respondent no. 1 on 16.12.1981 served a
notice on the appellant that he want to
start the construction and, therefore, either
the plan be sanctioned or if there is any
objection he may be informed. No reply
was given by the appellant. Therefore, on
27.12.1981 the respondent no.1 again
served a notice that he is starting the
constructions. The constructions were
complete regarding which the information
was given and the house was given
number 33/2 Stanley Road, Allahabad and
was also assessed to house tax. However,
later
on
the
appellant
treated
the
constructions as illegal and served notice
for demolition. The respondent no.1 was
ready to compound the matter but the
request
for
compounding
was
also
rejected, hence the suit was filed. The
appellants contested the suit and it is
contended that the house has been
constructed without sanction of the plan
and,
therefore,
it
is
liable
to
be
demolished. It was further pleaded that
the civil court has no jurisdiction to try
the suit.

2. The trail court has held that the
appellants have no right to demolish the
house and the court has jurisdiction to try
the suit. The suit was decreed by the trail
court. The appeal preferred by the