# RANA SHEO AMBAR SINGH v. ALLAHABAD BANK LTD., ALLAHABAD

- **Citation:** [1962] 2 S.C.R. 441
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 301 of 1960
- **Bench:** P. B. Gajendragadkar, K. N. w ANCHOO, K. C. DAS GuPT4, T. L. Venkatarama Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rana-sheo-ambar-singh-v-allahabad-bank-ltd-allahabad-2265
- **Pages:** 12

## Headnote

Mortgage Decree-Proprietary rights in Zamindari-Exccution proceedings pending -Zamindari rights abolishcd-Bhumidari
rights confirmed on intermediaries-·M ortgagor, if can sell Bhumidari
rights in execution-Relief available-U. P. Zamindari
Abolition and Land Reforms Act, r950 (U.P. I of r95r), ss. 6(a)(i),
6(h), r8.
The appellant's father, a Talukdar of the Estate of Khajurgaon, executed a simple mortgage of his proprietary interest in
the estate consisting of sixty-seven villages to the Allahabad
Bank Ltd. While execution proceedings were pending, the
U. P. Zamindari Abolition and Land Reforms Act, i950, came
into force from July 1952.
As a result, the Zamindari rights of
the appellant judgment-debtor were abolished and it was no
longer possible to sell these rights in the 67 villages. The
respondent Bank made an application before the executing
court that as the Zamindari rights could not be sold, only such
rights of the judgment-debtor as remained in him after coming
into force of the Act might be sold along with certain otl1er
rights.
Objections were taken and finally the matter came up by
appeal to the High Court and it, inter alia, upheld the view of
the executing court that the execution could proceed against the
Bhumidari rights created in favour of the appellant under s. 18
of the Act.
The question was whether the Bhumidari rights created
under s. 18 of the Act could also be sold in execution of the
decree in view of the fact that the proprietary rights had vested in the State.
Held, that the intention of the U. P. Zamindari Abolition
and Land Reforms Act was to vest the proprietary rights in the
Sir and Khudkast land and grove land in the Estate by virtue
of s. 6(a)(i) and resettle it on the intermediary not as compensation but by virtue of his cu1tivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never
had before, by s. 18 of the Act.
The proprietary rights in Sir, Khudkast land and grove
iand which were mortgaged were extinguished, and the Bhumidari right which was altogether a new right could not be considered to be included under the mortgage.
April 27.
Rana Sheo
Anibar Singh
v.
Allahabad
Rani~
Ltd., Allahabad
442
SUPREME COURT REPORTS
[1962]
The mortgagee could only enforce his rights against the
mortgagor in the manner as provided by s. 6(h) of the Act read
withs. 73 of the Transfer of Property Act and follow the compensation money; and so far as the Sir, Khudkast land and
grove land were concerned, he could not enforce his rights
under the mortgage by the sale of the Bhumidari rights created
in favour of the mortgagor against them as a substituted security.
In the instant case the Bhumidari rights created in favour
of the appellant could not be sold in execution of the decree
held against him by the respondent under the mortgage of 1914.
CIVIL APPELLATE
JURISDICTION:
Civil
Appeal
No. 301 of 1960.
Appeal from the judgment and decree dated September 24, 1958, of the Allahabad High Court (Lucknow Bench) at Lucknow in First Execution of Decree
Appeal No. 8 of 1953.
0. B. Agarwala, Shankar Prasad and 0. P. Lal,
for the appellant.
Iqbal Ahmed, N. 0. Chatterjee, D. N. Mukherjee
and B. N. Ghosh, for the respondent.
1961. April 27.
The Judgment of the Court was
delivered by
Wanchoo ].
WANCHOO, J.-This is an appeal on a certificate
granted by the Allahabad High Court. The brief
facts necessary for present purposes are these. The
appellant's father Rana Umanath Bakshsingh was the
Talukdar of Khajurgaon. On July 13, 1914, Rana
Umanath Bakshsingh executed a simple mortgage in
favour of the Allahabad Bank Limited (hereinafter
called the respondent). The mortgage was for a sum
of Rs. 6,00,000 and the property mortgaged consisted of sixty.seven villages. In May 1924, the respondent filed a suit for the recovery of the balance of the
unpaid mortgage money by the sale of the mortgaged
property. In January 1925 a preliminary decree fo

## Text

2 S.C.R.
SUPREME COURT REPORTS
441
RANA SHEO AMBAR SINGH
v.
ALLAHABAD BANK LTD., ALLAHABAD
(P. B. GAJENDRAGADKAR, K. N. w ANCHOO,
K. C. DAS GuPT4 and
T. L. VENKATARAMA AIYAR, JJ.)
Mortgage Decree-Proprietary rights in Zamindari-Exccution proceedings pending -Zamindari rights abolishcd-Bhumidari
rights confirmed on intermediaries-·M ortgagor, if can sell Bhumidari
rights in execution-Relief available-U. P. Zamindari
Abolition and Land Reforms Act, r950 (U.P. I of r95r), ss. 6(a)(i),
6(h), r8.
The appellant's father, a Talukdar of the Estate of Khajurgaon, executed a simple mortgage of his proprietary interest in
the estate consisting of sixty-seven villages to the Allahabad
Bank Ltd. While execution proceedings were pending, the
U. P. Zamindari Abolition and Land Reforms Act, i950, came
into force from July 1952.
As a result, the Zamindari rights of
the appellant judgment-debtor were abolished and it was no
longer possible to sell these rights in the 67 villages. The
respondent Bank made an application before the executing
court that as the Zamindari rights could not be sold, only such
rights of the judgment-debtor as remained in him after coming
into force of the Act might be sold along with certain otl1er
rights.
Objections were taken and finally the matter came up by
appeal to the High Court and it, inter alia, upheld the view of
the executing court that the execution could proceed against the
Bhumidari rights created in favour of the appellant under s. 18
of the Act.
The question was whether the Bhumidari rights created
under s. 18 of the Act could also be sold in execution of the
decree in view of the fact that the proprietary rights had vested in the State.
Held, that the intention of the U. P. Zamindari Abolition
and Land Reforms Act was to vest the proprietary rights in the
Sir and Khudkast land and grove land in the Estate by virtue
of s. 6(a)(i) and resettle it on the intermediary not as compensation but by virtue of his cu1tivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never
had before, by s. 18 of the Act.
The proprietary rights in Sir, Khudkast land and grove
iand which were mortgaged were extinguished, and the Bhumidari right which was altogether a new right could not be considered to be included under the mortgage.
April 27.
Rana Sheo
Anibar Singh
v.
Allahabad
Rani~
Ltd., Allahabad
442
SUPREME COURT REPORTS
[1962]
The mortgagee could only enforce his rights against the
mortgagor in the manner as provided by s. 6(h) of the Act read
withs. 73 of the Transfer of Property Act and follow the compensation money; and so far as the Sir, Khudkast land and
grove land were concerned, he could not enforce his rights
under the mortgage by the sale of the Bhumidari rights created
in favour of the mortgagor against them as a substituted security.
In the instant case the Bhumidari rights created in favour
of the appellant could not be sold in execution of the decree
held against him by the respondent under the mortgage of 1914.
CIVIL APPELLATE
JURISDICTION:
Civil
Appeal
No. 301 of 1960.
Appeal from the judgment and decree dated September 24, 1958, of the Allahabad High Court (Lucknow Bench) at Lucknow in First Execution of Decree
Appeal No. 8 of 1953.
0. B. Agarwala, Shankar Prasad and 0. P. Lal,
for the appellant.
Iqbal Ahmed, N. 0. Chatterjee, D. N. Mukherjee
and B. N. Ghosh, for the respondent.
1961. April 27.
The Judgment of the Court was
delivered by
Wanchoo ].
WANCHOO, J.-This is an appeal on a certificate
granted by the Allahabad High Court. The brief
facts necessary for present purposes are these. The
appellant's father Rana Umanath Bakshsingh was the
Talukdar of Khajurgaon. On July 13, 1914, Rana
Umanath Bakshsingh executed a simple mortgage in
favour of the Allahabad Bank Limited (hereinafter
called the respondent). The mortgage was for a sum
of Rs. 6,00,000 and the property mortgaged consisted of sixty.seven villages. In May 1924, the respondent filed a suit for the recovery of the balance of the
unpaid mortgage money by the sale of the mortgaged
property. In January 1925 a preliminary decree for
the recovery of rupees four lacs and odd was passed,
which was made final in July 1926 and directed the
sale of the mortgaged property, namely, the proprie-
•
tary rights of Rana Umanath Bakshsingh in the sixtyseven villages. Then followed execution applications
with which we are not concerned. In 1934, the U. P.
2 S.C.R. SUPREME COURT REPORTS
443
Agriculturists' Relief Act was passed and thereupon
an application was made by the judgment-debtor for
the amendment of the decree under that Act. On
October 19, 1936, the decree was amended under the
provisions of that Act and thereafter the pending
execution proceedings were dropped as instalments
had been fixed.
Evenl.ually, the rnspondent applied
for execution on May 25, 1940. Objection was taken
to this application on the ground that it was barred
by time; but this matter was decided against the
judgment-debtor and thereafter the execution has
been proceeding uptil now on this application.
On July 1, 1952, the U. P. Zamindari Abolition and
Land Reforms Act, 1950 (1of1951), hereinafter called
the Act, came into force.
As a consequence of this
en.actment, the zamindari rights of the judgmentdebtor were abolished and it was no longer possible to
sell these rights in the sixty-seven villages. Consequent!)', on September 29, 1952, the respondent
made an application that as the zamindari rights could
not be sold, only such rights of the judgment debtor
as remained in him after the coming into force of the
Act might be sold, namely, the rights in trees and wells
in abadi and buildings situate in various villages
under sale. It was also prayed that the judgmentdebtor's proprietary rights in grove land and sir and
khudkashat land had been continued under s. 18 of the
Act and these constituted substituted security in place
of the proprietary rights mortgaged with the respondent and they should also be sold. Finally it was prayed that compensation money payable to the judgment-debtor on the acquisition of the proprietary
rights by the State might be treated as substituted
security.
The appellant objected to these applications on
various grounds. The execution court held that the
buildings, trees and wells situated in the abadi were
liable to be sold in execution of the decree. It further
held that the respondent was entitled to compensation amount granted by the State to the appellant in
lieu of zamindari rights as substituted security. Finally, it held that the bhumidari rights acquired by the
I961
Ran(I. Sheo
An1bar Singh
v.
Allahabad Bank
Ltd., Ailahabad
Wanchoo .f.
444
SUPREME COURT REPORTS
[1962]
1961
appellants under s. 18 of the Act could also be sold in
execution of the decree.
Rana Sheo
JI
h
Amba. Singh
The appe ant t en took the matter in appeal lo the
v.
High Court, and the two points urged before the High
Allahabad Bank Court were (i) that the bhumidari rights created by
Ltd., Allahabad s. 18 (i) of the Act could not be sold in execution of
the decree, and (ii) that the application dated SeptemWanchoo f.
her 20, 1952, was a fresh application for execution
and as it was filed over 12 years after the date of the
amended decree it was barred by time. The High
Court repelled both these contentions, and held that
execution could proceed against the bhumidari rights
created in favour of the appellant under s. 18 of the
Act and further that the application dated September
20, 1952, was within time as it was not a fresh application and the decree holder was only seeking to
execute the decree in respect of the property for the
sale of which he had already applied within time
allowed by law. The High Court therefore dismissed
the appeal. The appellant then obtained a certificate
to appeal to this Court; and that is how the matter
has come up before us.
The main point urged on behalf of the appellant iM
that the decision of the High Court that bhumidari
rights created under s. 18 of the Act can also be sold
in execution of the decree, is not correct. Under the
mortgage deed, the property mortgaged consisted of
the property forming part of the Talukdari of Khajurgaon detailed at the foot of the mortgage, namely,
the sixty-seven villages. Thus the mortgage consisted
of the proprietary interests only of the mortgagor in
the sixty-seven villages, and as it was a simple mortgage, possession of no part of the property was given
to the mortgagee.
It is therefore contended by
Mr. Aggarwala on behalf of the appellant that as the
proprietary right in the sixty-seven villages vested in
the State under the Act, the respondent who was only
entitled to get the proprietary rights sold under the
mortgage can now fall back only on compensation
payable to the appellant under the Act, and reliance
in particular is placed on s. 6 (h) of the Act in this
connection. On the other hand, the contention on
•'
2 S.C.R. SUPREME COURT REPORTS
445
behalf of the respondent is that bhumidari rights
arising under s. 18 of the Act are liable to be sold as
they represented the proprietary rights which were
mortgaged and in any case they can be sold as sub.
stituted security in place of the property mortgaged.
We have therefore to look into the scheme of the
Act in order to decide between the rival contentions.
It is not in dispute that the Taluka of Khajurgaon
was an estate within the meaning of the Act. It may
be mentioned that the judgment-debtor had certain
sir and khudkashat lands and zamindar's grove in the
sixty-seven villages comprised within the Talukdari
estate. Section 4 of the Act provides for vesting of
an estate in the State on the making of a notification
thereunder and the Taluka of Khajurgaon has vested
in the State by virtue of such a notification made
under s. 4. Section 6 prescribes the consequences of
the vesting arising under s. 4 and we may refer to
s. 6(a) (i) as that will show in what the interests of
the judgment-debtor ceased and became vested in the
State:-
"(a)-all rights, title and interest of all the intermediaries-
(i) in every estate in such area including land
(cultivable or barren), grove-land, forests whether
within or outside village boundaries, trees (other
than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways,
abadi sites hats, bazars or melas (other than hats,
bazars, melas held upon land to which clauses (a) to
(c) of sub-section (1) of section 18 apply), and
shall cease and be vested in the State of Uttar Pradesh free from all encumbrances."
Clause (h) of s. 6 is also material and is in these terms:-
"(h) no claim or liability enforceable or incurred
before the date of vesting by or against such intermediary for any money, which is charged on or is
secured by a mortgage of such estate or pa.rt thereof
shall, except as provided in section 73 of the Transfer of Property Act, 1882, be enforceable against
his interest in the estate."
~1
r96r
Rana Sheo
Ambar Singh
v.
Allahabad Bank
Ltd., Allahabad
Wanchoo ].
446
SUPREME COURT REPORTS
[1962]
x961
All lands therefore whether cultivable or barren
or grove lands vested in the State on the notification
Rana Shea
b
d
th
'
under s. 4 having
een ma e save as o erw1se proAmbar Singh
v.
vided in this Act. Therefore, proprietary rights in
Allahabad Bank sir and khudkashat land and grove land would vest in
Ltd., Allahabad the State on the coming into force of the notification
under s. 4 unless there was some provision otherwise
Wanchoo f,
in the Act. The contention of the respondent therefore that sir and khudkashat land and grove land continued to be the property of the appellant and would
therefore remain liable to be sold in execution proceedings would fail in view of the notification under
s. 4, unless of course there is a provision otherwise in
the Act. The only provisions otherwise on which the
respondent relies are ss. 9 and 18 of the Act.
So far
as s. 9 is concerned, it is certainly a provision other·
wise and it provides as follows:-
" All wells or trees in abadi, and all buildings
situate within the limits of an estate, belonging to
or held by an intermediary or tenant or other person, whether residing in the village or not, shall
continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the
site of the wells or the buildings with the area ap·
purtenant thereto shall be deemed to be settled with
him by the State Government on such terms and
conditions as may be prescribed."
This provision clearly creates an exception to the
property which vests in the State on the making of a
notification under s. 4. The exception is in favour of
all wells and trees in abadi and all buildings and it is
significant to note that these things will continue to
belong to the intermediary, though the further provision shows that the site of the wells, and buildings
with the area appurtenant thereto would vest in the
Government and would be deemed to be settled with
the intermediary on such conditions and terms as may
be prescribed. The effect therefore of s. 9 is that
wells, trees in abadi and buildings apart from the land
under them continue to belong to the intermediary
(and the appellant is undoubtedly an intermediary
within the meaning of the Act); but even here the
2 S.C.R. SUPREME COURT REPORTS
447
land on which the buildings and the wells stand vest
r96r
in the State and it is deemed settled with the interRana Shea
mediary on terms and conditions to be prescribed. So
Ambar Singh
far therefore as wells and trees in abadi and all buildv.
ings are concerned, these continue to belong to the Allahabad Bank
appellant and if they are covered by the mortgage Ltd., Allahabad
they would be liable to sale. As we have already
J:
H
Wanchoo ].
pointed out, there was no dispute be1ore the
igh
Court with respect to wells, and trees in abadi and
buildings and it was conceded there that these were
liable to be sold, the only dispute being with respect
to bhumidari rights created under s. 18.
Let us now turn to s. 18 and see whether it is also
a provision otherwise like s. 9.
The relevant part of
s. 18 for our purposes is in these terms:-
"{!) Subject to the provisions of sections 10, 15,
16 and 17, all lands-
(a) in possession of or held or deemed to be held
by an intermediary as sir, khudkashat or an intermediary's grove,
on the date immediately preceding the date of vesting shall be deemed to be settled by the State
Government with such intermediary, lessee, or
tenant, grantee or grove-holder, as the case may be,
who shall subject to the provisions of this Act be
entitled to take or retain possession as a bhumidar
thereof."
It is well to contrast the language of this section with
the language of s. 9. Section 9 lays down that trees and
wells in abadi and buildings shall continue to belong
to the intermediary and that shows that it was a provision otherwise excepting these three items from
vesting in the State by virtue of the notification under
s. 4 and its consequence under s. 6; but there is no
provision ins. 18 of the Act to the effect that sir and
khudkashat land and intermediary's grove shall continue to belong to .the intermediary. Therefore, sir
and khudkashat land and grove land would vest in
the State by virtue of s. 6 (a) (i) for there is no provision otherwise in s. 18 in that behalf. In this connection we may refer for comparison to s. 23 of the
l':Jvl
Rana Shea
Ambar Singh
v,
Allahabad Bank
Ltd., A ltahabad
Wanchoo J.
448
SUPREME COURT REPORTS
[1962]
Rajasthan Land Reforms and Resumption of Jagirs
Act, No. VI of 1952 (hereinafter called the Rajas than
Act) which provides that "notwithstanding anything
contained in the la.st preceding section (i.e. s. 22,
which refers to consequences of resumption), all
khudkashat lands of a Jagirdar etc. shall continue to
belong to or be held by such jagirdar or other person". If the intention of the Act was not to vest sir
and khudkashat land and grove land in the State we
would have found an exception similar to that found
in the Rajasthan Act. Section 9 itself shows in what
manner the legislature was making an exception when
it did not intend that a particular property should
vest in the State. If the intention were that sir and
khudkashat land and grove land should not vest in
the State, s. 18 would have been worded in the same
way as s. 9. Further the way in which s. 18 is
worded, (namely that khudkashat and sir lnnd and an
intermediary's grove shall be deemed to be settled
with the intermediary and he would have bhumidari
rights therein) shows that these three kinds of property vested in the State under s. 6(a)(l) and were
then re-settled with the intermediary on a new tenure
and not in the same right, which he had in them
before the vesting. '.l'he legislature was therefore
creating a new right under s. 18 and the old proprietary right in sir and khudkashat land and any
intermediary's grove land had already vested under
s. 6 in the State, Therefore, it cannot be said that
s. 18 is an exception to the consequenct's provided in
s. 6 and therefore sir and khudkashat land and grove
land continue to be the property of the judgmentdebtor in this case in the same manner as they were
his property at the time of the mortgage and would
therefore be available in execution of the decree as
the proprietary rights mortgaged. We are of opinion
that the proprietary rights in sir and khudkashat
land and in grove land have vested in the State and
what is conferred on the intermediary by s. 18 is a
new right altogether which he never had and which
could not therefore have been mortgaged in 1914.
Our attention in this connection was drawn to the
2 S.C.R. SUPREME COURT REPORTS
449
compensation sections in the Act, and it was urged
that what was given to the intermediary under s. 18
was really his old right because no compensation was
to be paid to him with respect to what was left to him
under s. 18. The first section to be considered in this
connection is s. 39 which deals with gross assets of a
mahal. In these gross assets the amount computed at
the rates applicable to the ex-proprietary tenants of
similar land for land in the personal cultivation of or
held as intermediary's grove, Khudkashat or sir by all
the intermediaries in the estate was to be included
subject to certain exceptions which are immaterial for
our purposes. The very fact that in the gross assets
the rents of these lands in which the bhumidari rights
were created under s. 18 were taken into consideration shows that these lands also vested in the State;
if that were not so there was no necessity for including these assets in the gross assets for the purposes of
compensation. Here again we may refer to a similar
provision in the Rajasthan Act for purposes of comparison. The second Schedule to that Act provides
how gross income is to be calculated and in calculating the gross income the income from khudkashat
land has not been taken into account because it was
excepted from the consequence of resumption under
s. 23 of that Act. It is true that under s. 44 of the
Act when calculating net assets, the income from sir
and khudkashat land and grove land has been excluded
on the ground that bhumidari rights have been conferred therein under s. 18 of the Act. That is however
for the purposes of calculating what should be paid
to the intermediary as compensation and in that connection it was necessary to take into account the fact
that the legislature was creating a new right in the
intermediary with respect to certain lands and therefore it was not necessary to give.money as compensation. That would not however make any difference
in our view as to the legal effect of the notification
under s. 4 and under the notification sir and khudkashat land and grove land would vest in the State and
would not be an exception to the consequences of vesting in s. 6 and therefore the proprietary right in sir
r96r
Rana Sheo
Ainbar Singh
v.
Allahabad Bank
Ltd., Allahabad
Wanchoo j,
Rana Sheo
Ambar Singh
v.
Allahabad Bank
Ltd., Allahabad
Wanchoo ].
450
SUPREME COURT REPORTS
[1962]
and khudkashat land and grove land which were
mortgaged would be extinguished and the bhumidari
right which is created by s. 18 would be a new right
altogether and would not therefore be considered to
be included under the mortgage in this case.
This brings us to a consideration of s. B(h) of the
Act. That lays down that "no claim or liability enforceable or incurred before the date of vesting by or
against such intermediary for any money, which is
charged on or is secured by a mortgage of such estate
or part thereof shall, except as provided in s. 73 of the
Transfer of Property Act, 1882, be enforceable against
his interest in the estate". This provision has in our
opinion a two-fold effect. In the first place, it makes
it impossible for the mortgagee to follow the proprietary right after it vests in the State. Secondly, it
provides that the only way in which the mortgagee
can recover his money advanced on the security of the
property which vested in the State by virtue of the
notification under s. 4 and the consequences thereof
under s. 6 is to follow the procedure under s. 73 of the
Transfer of Property Act. Section 73(2) provides that
"where the mortgaged property or any part thereof or
any interest therein is acquired under the Land Acquisition Act, 1894 (1 of 1894), or any other enactment
for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee
shall be entitled to claim payment of the mortgage
money, in whole or in part, out of the amount due
to t.he morLgagor as compensation". There is no doubt
that the property mortgaged has been compulsorily
acquired in this case by the State under the Act.
Therefore, s. 6 (h) read with s. 73 directs that the
mortgagee shall proceed in the manner provided in
s. 73, namely, follow the compensation money, and
there is no other way possible for him in view of s. B(h)
with respect to the property which has been acquired
under the Act.
We have held that sir and khudkashat land and grove land have been acquired under
the Act and have yested in the State; therefore the
mortgagee is relegated to enforce his rights against the
mortgagor in the manner provided in s. 73 of the
2 S.C.R. SUPREME COURT REPORTS
451
Transfer of Property Act and in no other way. What
we say here does not affect that property which is
not acquired by the State, for example, property excepted under s. 9 of the Act; but where the property
has vested in the State by virtue of a notification
under s. 4 and its consequences under s. 6, the only
course open to the mortgagee is to follow the compensation money under s. 6(h).
The bhumidari rights
created under s. 18 are not compensation; they are
special rights conferred on the intermediary by virtue
of his cultivatory possession of the lands comprised
therein. The respondent therefore cannot enforce his
rights under the mortgage by sale of the bhumidari
rights created in favour of the app,,.iant under s. 18 so
far as his sir and khudkashat land and grove land are
concerned; it can only follow the compensation money
as provided in s. 6(h). The argument that bhumidari
rights 0an be followed as substituted security must
therefore equally fail.
Our attention in this connection was drawn to s. 8(2)
of the U. P. Zamindars Debt Reduction Act, No. XV
of 1953. That Act provides for scaling down of debts
of zamindars whose estates have been acquired under
the Act. It also provides that the debts due shall be
realisable frol)l the compensation and rehabilitation
grant, and in particular s. 8(2) provides that "notwithstanding anything in any law the reduced amount
found in the case of a mortgagor or judgment-debtor
as the case may be, under section 3 or 4 as respects
mortgaged estates shall not be legally recoverable
otherwise than out of the compensation and rehabilitation grant payable to such mortgagor or judgmentdebtor in respect of such estates".
We have not been
able to understand how the provisions of the U. P.
Zamindars Debt Reduction Act can affect the construction of s. 6(h) of the Act read with other provisions of the Act. It is not necessary for us therefore
to construe s. 8(2) of the U. P. Zamindars Debt Reduction Act, for we are clear on the provisions of s. 6 (h)
and the other provisions of the Act that bhumidari
,rights created in favour of the appellant cannot be
sold in execution of the decree held against him by
the respondent under the mortgage of 1914.
I96I
Rana Sheo
Ambar Singh
v.
Allahabad Bank
Ltd., Allahabad
JVanchoo ] ..
Rana Sheo
Ambar Singh
v.
Allahabad Bank
Ltd,, Allahabad
Wanchoo ].
z96I
April 27.
452
SUPREME COURT REPORTS
[1962)
This brings us to the question of limitation. Mr.
Aggarwala conceded that if the appellant succeeds on
the first' point it would not be necessary for us to consider the question of limitation. Therefore, as the
appellant. succeeds on the first point we need not
consider whether the application for execution by sale
of bhumidari rights created under s. 18 is barred by
limitation.
We therefore allow the appeal and direct that the
execution of the decree by the respondent will not be
levied against the bhumidari rights created in favour
of the appellant under s. 18 of the Act. The appellant
will get his costs of this court and of the High Court.
Costs of the execution court will be at the discretion of
that Court.
Appeal allowed.
TIRUMALACHETTI RAJARAM
v.
TIRUMALACHETTI RADHAKRISHNAYYA
CH ETTY
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. WANCHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Supreme Court, Appellate Jurisdiction of-Appeal from decree
affirming the decision of the court below-Decree of aj/irmance,
Meaning of-Test-Constitution of India, Art. 133(1).
The appellant brought a suit for the recovery of his moiety
share of the joint family properties against his father and alienees from the latter and his case was that the alienations made
by the father were not binding on his share of the properties.
The trial court dismissed the suit but the High Court on appeal
reversed the decision of the trial court in respect of some of the
properties, passed a preliminary decree for partition of those
properties and confirmed the rest of the decree of the trial court.
The appellant applied for a certificate under Art. 133(1) of the
Constitution but the High Court rejected the same holding that
the decree was one of affirmance and involved no substantial