# i962 Sir Cl11111il4l V. M1hla 41 Sons1 Ud v. Tiu Ct11t111y Spinning 4' M"""fact,,.ing C Lid

- **Citation:** [1962] Supp. 3 S.C.R. 564
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 352 of 1959
- **Bench:** P. B. Ga.Jk'.Sdragadkar, A. K. Sarkar, K. N. w AN CHOO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i962-sir-cl11111il4l-v-m1hla-41-sons1-ud-v-tiu-ct11t111y-spinning-4-m-fact-ing-2481
- **Pages:** 18

## Headnote

Bxecution-l'eroonal decree against mortgagor-Mortgaged
e•late i·eBting 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
3 S.C.R.
SUPREME COURT REPORTS
565
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.

## Text

i962
Sir Cl11111il4l V.
M1hla 41 Sons1 Ud.
v.
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
e~cluded 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~
v.
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 i·eBting 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
3 S.C.R.
SUPREME COURT REPORTS
565
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·
1962
Kri1hntJ Prasad
v.
Gauri ~umari Deni
1962
Kris1ma Prosad
v.
Gauri Kumari Dtri
Gaj111dratadk.1r J,
566 SUPREME COURT REPORTS [1962) SUPP.
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 pcrsoni~lly 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 ~'!
.
3 s.c.R: SUPREME COURT REPORTS
567
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,
1962
Krishna Prasad
v.
Gauri Kumm '.Devi
KriJhna Prasad
v,
O«U'i K'w'IJari Dt'Tli
568 SUPREME COURT REPORTS [1962) SUPP.
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
.
.
..
3 S.C.R.
SUPREME COURT REPORTS
569
Court in. favour of the appellants and has ordered
that the Executfon Application filed by the appel1 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
v.
Gauri K'umari DevJ
Gajendragadkar J;
196t
Kriahu Pra1aJ
••
Gdttt i K umari Dlfri
Gajtn4ragadk"1 J.
570 SUPREME COURT REPORTS [1962) SUPP.
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 pre~cribed notification
was issued and the mortgaged properties belonging
to the respondent harl vosted ·in t be Sta,te of Bihar,
the a.ppellants appliml und~r 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
3 S.C.R.
SUPREME COURT REPORTS
571
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 well·known, the Act was passed to provide
for the transference to the State· of the interests of
proprietors and tenure- holders 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 t~e ~isc~ief
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 non·eompliance 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)
1962
Krishnt Prasad
••
Gauri liumari Devi•
Gnjendragodker J.
1962
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 providt·s 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
{;
;
-
..
3 S.C.R.
SUPREME COURT REPORTS
57g
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
3 s.c.:R.
SUPREME COURT REPORTS
577
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
v.
G'auri Kumori Dea_\
1962
KrisMa PrqsaJ
v.
Oawi Kumeri l)tvi
Oa_itntlragodkttr J.
578 SUPREME COURT REPORTS [i962] SUPP.
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
3 S.C.R.
SUPREME COURT REPORTS
079
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
v.
Gauri Kumari Dt11 1
Gajendratadkaf' J ,
1962
v. '
G®ri Kurnwi Dec~;
5so SUPREME COURT REPORTS (1962) SUPP.
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 judgmont·debtor 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.
3S.C.R.
SUPREME COURT REPORTS
581
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.