# SHIV ASHANKAR PRASAD SHAH & ORS v. BAIKUNTII NATH SINGH & ORS

- **Citation:** [1969] 3 S.C.R. 908
- **Court:** Supreme Court of India
- **Decided:** 1969-03-07
- **Bench:** S. M. Sikri, R. S. Bachawat, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shiv-ashankar-prasad-shah-ors-v-baikuntii-nath-singh-ors-4661
- **Pages:** 9

## Headnote

B
Code of Civil Procedure-Re.s·Judicata--Objection against execution
proceeding, when barred.
Bihar Land Reforms Act, ss. 3, 4 & 6-Mortgaged Estate-Final
Decree obtained-Effect of.
After a preliminary decree was obtained by the appellants (mortgagees
of an Estate including both Bakasht lands and other lands), the Bihar
Land Reforms Act, 1950 came into force.
The appellant filed petition
for passing final decree. The Estate mortgaged vested in the State as a
result of a notification issued under s. 3(1) of the Act, and later a final
decree was passed in the mortgage suit. Thereafter the appellants applied
under s. 14 of the Act and got determined the compensation to which
they were entitled under the Act. But yet they filed an execution petition
to execute the mort~age decree against the Bakasht land. The respondents
resisted that execution by filing an application under s. 47, Civil Pro·
cedure Code contending that. the execution was barred under s. 4(d) of
the Acjt.
That application was dismissed for default of the respondents.
A second application raising, the same ground was filed by the respondents but this, too, was dismissed for their default. A third application
raising the same ground was filed by the respondents and in this, the
execution court overruled the objection raised by the respondents on the
grounds (i) that the objection was barred by the principles of res judicata
and (ii) that the bar of s. 4(d) pleaded was not tenable. This decision
was affirmed in appeal, but reversed in second appeal by the High Court.
Dismissing the appeal this Court;
HELD ; ( i) The objection was not barred by the principles of res
iudicata. Before a plea can be held to be barred by res judicata that plea
must have been heard and determined by the court. Only a decision by
a court <lould be res judicata, whether it be statutory under s. 11, Civil
Procedure Code or constructive as a matter of public policy on which
the entire doctrine rests. An execution petition having been dismissed for
the default of the decree·holder though by the time that petition came to
be dismissed. the judgment debtor bad resisted the execution on one or
more grounds, docs not bar the further execution of the decree in pu'r·
suance of fresh execution petitions filed in accordance with law.
Even
the dismissal for default of objections raised under s. 47, Civil Procedure
Code does not operate as res judicata when the same objections are raised
again in the course df the execution. [911 B-HJ
Maharaja Radha Parshad Sinf!h v. Lal Sahab Rai & Ors. L.R. 17 I.A.
150 Pulvarthi Venkata Subba Rao v.
Velluri lagannadha Rao & Ors.
[196"4] 2 S.C.R. 310, Lakshmibai Anant Kondkar v. Ravji Bhikaji Kond·
kar, XXXI B.L.R. 400, Bahir Das Pal cl: Anr. v. Girirh Chandra Pal, A.l.R.
1923 Cal. 287, Bhagwati Prasad Sah v. Radha Kishun Sah & Or~. A.I.R.
1950 Pat. 354, lethmal & Ors. v. Mst. Sakina. A.l.R. 1961 Ra1.
1959
Bishwannth Kundu v. Smt. Subala Dassi, A.l.R. 1962 Cal. 272, referred
to.
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S. P. SHAH v. B. N. SINGH (Hegde, J.)
909
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Ramnarain v. Basudeo, I.LR. XXV Pat. 595, disapproved.
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(ii) Proceedings under s. 4(d) of the Bihar Land Reforms Act, 1950
included execution proceedings and the execution could not be proceeded
with. The only remedy open to the appellants was to get compensation
under Chapter IV of the Act. [913 G, Hl
Reading ss. 3, 4 and 6 together, it followed that all Estates notified
under s. 3 vested in the State free of all encumbrances.
The quondum
proprietors and tenure holders of those Estates lost all interests in those
Estates.
As proprietors they retained no intere"t in respect
of
them
whatsoever.
But in respect of the lands enumerated in s. 6 the State
settled on them the rights of raiyats. Though in fact the vesting of the
Estates and the deemed settlements of raiyat rights in respect of certain
classes of lands included in the Estates took place simultaneously. in law
the two must be treated as different transactions; first ther

## Text

SHIV ASHANKAR PRASAD SHAH & ORS.
A
v.
BAIKUNTII NATH SINGH & ORS.
March 7, 1969
[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]
B
Code of Civil Procedure-Re.s·Judicata--Objection against execution
proceeding, when barred.
Bihar Land Reforms Act, ss. 3, 4 & 6-Mortgaged Estate-Final
Decree obtained-Effect of.
After a preliminary decree was obtained by the appellants (mortgagees
of an Estate including both Bakasht lands and other lands), the Bihar
Land Reforms Act, 1950 came into force.
The appellant filed petition
for passing final decree. The Estate mortgaged vested in the State as a
result of a notification issued under s. 3(1) of the Act, and later a final
decree was passed in the mortgage suit. Thereafter the appellants applied
under s. 14 of the Act and got determined the compensation to which
they were entitled under the Act. But yet they filed an execution petition
to execute the mort~age decree against the Bakasht land. The respondents
resisted that execution by filing an application under s. 47, Civil Pro·
cedure Code contending that. the execution was barred under s. 4(d) of
the Acjt.
That application was dismissed for default of the respondents.
A second application raising, the same ground was filed by the respondents but this, too, was dismissed for their default. A third application
raising the same ground was filed by the respondents and in this, the
execution court overruled the objection raised by the respondents on the
grounds (i) that the objection was barred by the principles of res judicata
and (ii) that the bar of s. 4(d) pleaded was not tenable. This decision
was affirmed in appeal, but reversed in second appeal by the High Court.
Dismissing the appeal this Court;
HELD ; ( i) The objection was not barred by the principles of res
iudicata. Before a plea can be held to be barred by res judicata that plea
must have been heard and determined by the court. Only a decision by
a court <lould be res judicata, whether it be statutory under s. 11, Civil
Procedure Code or constructive as a matter of public policy on which
the entire doctrine rests. An execution petition having been dismissed for
the default of the decree·holder though by the time that petition came to
be dismissed. the judgment debtor bad resisted the execution on one or
more grounds, docs not bar the further execution of the decree in pu'r·
suance of fresh execution petitions filed in accordance with law.
Even
the dismissal for default of objections raised under s. 47, Civil Procedure
Code does not operate as res judicata when the same objections are raised
again in the course df the execution. [911 B-HJ
Maharaja Radha Parshad Sinf!h v. Lal Sahab Rai & Ors. L.R. 17 I.A.
150 Pulvarthi Venkata Subba Rao v.
Velluri lagannadha Rao & Ors.
[196"4] 2 S.C.R. 310, Lakshmibai Anant Kondkar v. Ravji Bhikaji Kond·
kar, XXXI B.L.R. 400, Bahir Das Pal cl: Anr. v. Girirh Chandra Pal, A.l.R.
1923 Cal. 287, Bhagwati Prasad Sah v. Radha Kishun Sah & Or~. A.I.R.
1950 Pat. 354, lethmal & Ors. v. Mst. Sakina. A.l.R. 1961 Ra1.
1959
Bishwannth Kundu v. Smt. Subala Dassi, A.l.R. 1962 Cal. 272, referred
to.
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S. P. SHAH v. B. N. SINGH (Hegde, J.)
909
A
Ramnarain v. Basudeo, I.LR. XXV Pat. 595, disapproved.
B
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G
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(ii) Proceedings under s. 4(d) of the Bihar Land Reforms Act, 1950
included execution proceedings and the execution could not be proceeded
with. The only remedy open to the appellants was to get compensation
under Chapter IV of the Act. [913 G, Hl
Reading ss. 3, 4 and 6 together, it followed that all Estates notified
under s. 3 vested in the State free of all encumbrances.
The quondum
proprietors and tenure holders of those Estates lost all interests in those
Estates.
As proprietors they retained no intere"t in respect
of
them
whatsoever.
But in respect of the lands enumerated in s. 6 the State
settled on them the rights of raiyats. Though in fact the vesting of the
Estates and the deemed settlements of raiyat rights in respect of certain
classes of lands included in the Estates took place simultaneously. in law
the two must be treated as different transactions; first there was a vesting
of the Estates in the State absolutely, free of all encumbrances. Then
followed the deemed settlement bv the State of raiyat's rights on
the
quondum proprietors.
Therefore in law it would
not be correct to say
that what vested in the State were only those interests not coming within
s. 6. [913 C-E]
Section 4 ( d) provided that "no suit shall lie in any civil court for the
recovery of any money due from such proprietor (proprietor whose estate
has vested in the State) or tenure holder the payment of which is secured
by a mortgage of, or is a charge on, such estate or tenure and all suits
and proceedings for the recpvery of any such money which may be pending on the date of ve·sting shall be dropped".
Proceedings in this section
undoubtedly included execution proceedin!l!. [913 Fl
RGmnarain v. Basudeo I.LR. XXV Pat. 595, Raj Kishore v.
Ram
Pratap, A.1.R. 1967 S.C. 801; [1967] ! S.C.R. 56,
Rana Sheo Ambar
Singh v. Allahabad Bank Ltd .. Al/a/what!, [1962] 2 S.C.R. 441 and Krishna
Prasad &: Ors. v. Gauri Kumari Devi. [1962] Supp. 3 S.C.R. 564, referred
to.
Sidh<shwar Prasad Singh v. Rem Saroop Singh, 1963 B.L.J.R. 802,
majority view disapproved.
CIVIL. APPELLATE JURISDICTION: Civil Appeal No. 368 of
1966.
Appeal by special leave from the judgment and order dated
February 3, 1964 of the Patna High Coun in Appeal from Appellate Order No. 99 of 1963.
Sarjoo Prasad and R. C. Prasad, for the appellants.
K. K. Sinha allld S. K. Bisaria, for the respondents.
The Judgment of the Court was delivered by
Hegde, 1. This appeal against the judgment of the Patiia High
Court dated the 3rd F~~ruary, 1964 in its Appellate Order No. 99
of 1963 was file.d obtammg special leave from this Court.
It arises
from a proceeding under s. 47, Civil Procedure Code: In execution
of a mortgage decree, the decree-holders sough~ to proceed against
·910
SUPREME COURT REPORTS
(1969] 3 5-C.R.
Bakasht Ja.nds of the judgment debtors. The judgment debtors objected to the same on the ground that the execution was barred
under s. 4(d) of the Bihar Land Reforms Act, 1950 (to be hereinafter referred to as the Act).
But that objection was overruled
by the executing court on two different grounds namely (1) that
the objection in question is barred by the principles of res judicata
and (2) the bar of s. 4{d) pleaded is lllOt tenable. The decision of
the execution court was affirmed in appeal but reversed in second
appeal by the High Court.
The two questions that arise for decision in this appeal are ( 1)
whether the objection as regards the executability of the decree
pleaded by the judgment debtors is barred by the principles of res
judicata and ( 2) whether the mortgage decree has become unexecutable in view of the provisions of the Act.
We shall now briefly set out the material facts of the case.
The mortgages, the appellants ijll this appeal obtained a preliminary
decree on June 26, 194 7 on the basis of a mortgage. The property
mortgaged was an Estate within the meaning of the Act.
That
property included both Bakasht lands as well as other lands.
The
Act came into force after the passing of the aforementioned preliminary decree. The decree-holders filed petition for passing a final
decree on September 19, 1955.
The Estate mortgaged vested in
the State of Bihar on January l, 1956 as a result of a notification
issued under s. 3 ( 1) of the Act. A final decree was passed in the
mortgage suit on October 1, 1956. Thereafter the mortgagees
applied under s. 14 of the Act and got determined the compensation to which they were eintitled under the Act. It is said that they
did not proceed any further in that proceeding but on the other
hand filed on June 18, 1958 an execution petition to execute the
mortgage decree against the 8akasht lands. The judgment debtors
resisted that execution by filing an application under s. 4 7, Civil
Procedure Code (Misc. Case No. 94 of 1959) on the ground that
the decree cannot be executed in view of the provisions of the Act.
That application was dismissed ior the default of the judgmentdebtors on SepteJ?.1ber 12, 1959. A second application raising the
same J?round (Misc. Case No. 110of1959) was filed by the judgment debto·~ is barred on the principles of res ;udicata and further
on July 23, 1960 •or default of the jud!!lllent debtors.
A third
application raising the same ground of objection (Misc. Case No.
91 of 1960) was filed by the judgment debtors on September 12.
1960. That application was dismissed on January 4, 1962 after
examining the conkltltions of. the parties.
Therein the execution
·court came to the conclusion that the objection raised by the judgment de,btors is barred on the principl~s of res judicata and further
that the same has no merits. This decision as mentioned earlier
·was affirmed by the appellate court but reversed by the High Court.
We shall first take up the conrention that the objection taken
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s. P. SHAH v. B. N. SINGH (Hegde, /.)
911
by the judgment debtors is harried by principles of res judicata.
Though at one stage, learned Coll)lseJ for the appellants-decree
holders attempted to bring the case within Explanation 5, s. 11,
Civil Procedure Code, he did not pursue that line of argument but
tried to support his contention on the broader principles of res
judicata.
The real question for decision in this case is whether
the dismissal of Misc. cases Nos. 94 and 110 of 1959 for default
of the judgment debtors can be said to be a final decision of the
court after hearing the parties.
Before a plea can be held to be
barred by the principles of res judicata, it must be shown that the
plea in question had not O\llly been pleaded but it had been heard
and finally decided by the court. . A dismissal of a suit for default
of the plaintiff, we think, would not operate as res judicata against
a plaintiff in a subsequent suit on the same cause Of action. If it
was otherwise there was no need for the legislature to enact rule 9,
Order 9, Civil Procedure Code which in specific term say that where
a suit is wholly or partly dismissed under rule 8, the plaintiff shal!
be precluded from bringing a fresh suit in respect of the samecause of action. The contention that the dismissal of a previous
suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial
Committee of the Privy Council in Maharaja Radha Parshad Singh
v. Lal Sahab· Roi and Ors.('). Therein the Judicial Committee
observed thus:
"None of the questions, either of fact or law raised
by the pleadings of the parties, was heard or det~rmined
by the Judge of the Shahabad Court in 1881; and his
decree dismissing the suit does
not constitute res
judicata within the mea,ning of the Civil Procedure Code
It must fall within ~:me or other of the sections of Cbapte~
VII ~f the <;ode; m the preseQt case it is immaterial to
C?ns:der ~h1ch, the severest penalty attached to such
dISmtssa! 1~ any case being ~at the plaintiff cannot bring
another suit for the same relief."
h From this decision it is clear that the Judicial Cotnm'tt
, __ ,,
t at before a plea can be held to be b
. 1 ~ op""""
plea must have been heard and Elet
. a~~ by res 1ud1cata that
decision by a court could be
. ~e Y the court. Only a
under s 11 c·vi·1 p
d
res JU lcata, whether it be statutory
•
•
'
I
roce ure Code or 0 1
ti'
public policy on which the entire do t .c ns rue ve as a matter of
decision can be considered as e . J: nne ~ests. Before an earlier
heard and finally decided r st" 1
1cath .t e same must have been
Velluri Jaga11(1adha Rao ;;:ee0
"(,.,,)art 1 Venkata Subba Rao v.
,
rs.
.
The courts in India have ge
al!
ak
execution petition which has been nde~s 'f edt ~n tthhe view that an
1 miss
1or
e default of the
(1) L.R. 17 J.A. ISO.
(2) [19641 2 S.C.R. JIO
912
SUPREME COURT REPORTS
[1969) 3 S.C.R.
der,ree-holder though by the time that petition came to be dismissed, the judgment debtor had resisted the executiqn on one or more
grounds, does not bar the further execution of the decree in pursuanoe of fresh execution petition filed in accordance with lawsee Lakshmibai Anant Kondkar v.
Ravji Bhikaji Kondkar(').
Even the dismissal for default of objections raised under s. 47,
Civil Procedure Code does lllKlt operate as res judicata when the
same objections are raised again in the course of the executionsee Bahir Das Pal and Anr. v. Girish Chandra Pa/(2 ); Bhagawati
Prasad Sah v. Radha Kishun Sah and Ors.(8 ); Jethma/ and Ors. v.
Mst. Sakina(4); Bishwanath Kundu v. Sm. Suba/a Dassi('). We
dq not think that the decision in Ramnarain v. Basudeo(6 } on
which the learned Counsel for the appellant placed great deal of
reliance is correctly decided.
Hence we agree with the High
Court that the plea of res judicata advanced by the appellant is
unsustainable.
The next question is whether the execution is barred under the
provisions of. the Act. The contention of the judgment debtors is
that it is so barred whereas according to the appellants as the
Bakasht lands which form part of the mortgaged property had
not v~ted in the State, the execution can proceed against those
lands.
Therefore we· have to see whether the entire mortga~ed
property had vested in the State in pursuance of the notification
under s. 3 or ootly the mortgaged property minus the Bakasht
lands.
There is no dispute that the property mortgaged was an Estate
within the meaning of s. 2(i) and the notification issued under
s. 3 covered the entirety of the Estate.
But what was urged on
behalf of the appellants is that what had vested in the State was
the nqn-bakasht lands as well as the proprietory interest in the
Bakasht lands and hence the Bakasht lands do not have the protectiOJ! of s. 4 ( d) ; Consequently it is not necessary for them to
exclusively proceed under s. 14.
The consequences of the vesting of an Estate is set out iJli s. 4.
Section 4 (a) provides that once an Estate vests in the State the
various rights in respect of that Estate enumerated therein shall
also vest in the State, absolutely free from all encumbrances.
Among the rights enumerated therei.n undoubtedly includes the
right of possession.
In view of s. 4 (a) there is hardly any doubt
that the proprietor loses all his rights in the estate in .question.
After settina out the various interests lost by the proprietor that
section pro~eeds to say "such proprietor or tenure holder shall
----·
(ll xxxr, B.L.R. <IQO.
(3) A l.R. !950 Pat. 354.
(5) Al.R. 1962 Cal. 272.
(2). A.I.R. 1923 Cal. 287.
(4) A.1
.1961 Raj. 59.
(6) U •. R. XXV pat. 595.
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s. P. SHAH v. B. N. SINGH (Hegde, J.)
913
cease to have any interests in such estate br tenure, other than the
interests expressly saved by or under the provisions of this Act"·
In order to find out the implication of the clause extracted above
we have to go to s. 6 which provides that on and from the date
of vesting all lands used for agricuJture or horticultural purposes
which were in khas possession of ain intermediary on the date ol.
vesting (including certain classes of land specified in that section)
shall subject to the provisions of ss. 7 A and B be deemed to be
settled by the State with such intermediary and he shall be entitled
to retain possession thereof and hold them as a raiyat uinder the
State having occupancy rights in respect of such !ands, subject to
the payment of such fair and equitable rent as may be determined
by the Collector in the prescribed manner.
Reading ss. 3, 4 and 6 together, it follows that all Estates
notified 111n<ler s. 3 vest in the State free of all encumbrances. The
quondum proprietors and tenure-holders of those Estates lose all
interests in those Estates. As proprietors they retain no interest
in respect of them whatsoever.
But in respect of the lands enumerated in s. 6 the State settled on them the rights of raiyats,
Though in act the vesting of the Estates and the deemed settlement of raiyats rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two
must be treated as different transactions; first there was a vesting
of the Estates in the State absolutely, and free of all encumbrllplces.
Then followed the deemed settlement by the State of
raiyat's rights on the quondum proprietors.
Therefore in law it
would not be correct to say that what vested in the State are only
those interests not coming within s. 6.
Section 4 ( d) provides that "no suit shall lie in any Civil Court
fo~ the recovery of any moner, due from such proprietor (propnetor whose estate has vested m the State) or tQn\lre holder the
payment of which is secured by a mortgage of, or is a charge on,
such estate or tenure ~d all swts and p~ings for the recovery
of any such money which may be pendmg on the date of vesting
.~hall be drop~"· Proc~ings in this section undoubtedly
1Jllclude execution pr<;>ceedmgs.
This is not a case where only a
pan of the moi:igaged prope~ has vested in the State and as
such the ~te laid down by this Co~ in Raj Kishore v. Ram
Pratap (1) is not attracted. As mentioned earlier the entire Estate
mortgaged had vested though some interest in respect of a portion
of the mortgaged property had been settled by the State on the
mortgagors.
Under the circumstances the only remedy open to the decreeholders is that provided in Chap. IV of the Act i.e. a claim under
(I) (1967] 2 s.c.R. S6; A.I.R.. 1967 s.c. 801.
914
SUPREME COURT REPORTS
[1969] 3 S.C.R.
s. 14 be.fore the Claims Officer for "determining the amount of
debt legally and justly payable to each creditor in respect of his
claim".
The procedure to be followed in such a proceedii!lg is
prescribed in ss. 15 to 18. Provisions relating to the assessment
and payment of compensation payable to the quondum proprietors and tenure-holders are found in Chap. V of the Act (ss. 19
to 31.) Section 24(5) provides that "in the case where the interest
of a proprietor or tenure-holder is subject to a mortgage or charge,
the compensation shall be first payable to the creditor holding
such mortgage or charge and the balance, if any, shall be payable
to the proprietor or tenure-holder concerned ... "
That subsection further prescribes the maximum amount that can be paid
to such a creditor.
In view of what has been stated above it follows that under
the circumstances of this case it is not OMIL to the appellants to
proceed with the execution.
Their only remedy is to get compensation under the Act.
Our conclusion receives strong support from some of the decisions of this court. In Rana Shea Ambar Singh v. Allahabad
Bank Ltd., Allahabad('), a question identical to the QOO before
us, but arising under the U.P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the
questions that arose for--Decision in that case was whether the
Bhurnidari right settled by the State on a previous proprietor whose
estate had vested in the State was liable to be proceeded agai,tlst
in execution of a mortgage decree against the Estate that had
vested in the State. This Court held that it was not liable to
be proceeded against.
Therein it was ruled that the intention of
the U.P. Zamindari Abolition ·and Land Reforms Act was to vest
the proprietary rights in the Sir and Khudkasht l~nid and grove
land in the State and resettle on intermediary not as compensation
but by virtue of his cultivatory possession of lands comprised
therein 'and on a new tenure aind confer upon the intermediary
a new and special right of Bhumidari, whlch he never had before
by s. 18 of the Act. The provisions in that Act relating to vesting
and settlement of Bhumidari rights are in a!l essential particulars
similar"to those in the Act relating to vesting and settlement of
Bakasht lands.
This Court further ruled in that casi: that the
mortgagee could only enforce his rights against the mort~gor in
the manner as provided ins. 6{h) .of the U.P. Act read withs. 73
of the Transfer of Property Act and follow the compensation
money under the Act.
In Krishna Prasad and Ors. v. Gauri Kumari Devi(2 ) the question that arose for decision by the Court was whether a mortgage
decree-holder could proceed against the properties of the mortga-
--ol[1.962J 2, s.c.R. 441.
(2) (1962] Supp. 3 S.C.R. 564.
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s. P. SHAH v. B, N. SINGH (Hegde, /.)
915
gor other than those mortgaged in enforcement of the personal
'ovenant when the property mortgaged had vested in the State
under the provisions of the Act.
That question was answered ip
the negative.
In the course of the judgment Gajendragadkar, J.
(as he then was) who spoke for the Court observed that there is
no doubt "that the scheme of the Act postulates that where the
provisions of the Act apply, claims of the creditors have to be submitted before the Claim Officer, the claimants have to follow the
procedure prescribed by the Act and cannot avail of any remedy
,1utside the Act by institutiing suit or any other proceeding in the
court of ordinary civil jurisdiction."
Proceeding further he
observed:
"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 mi.nd the object of the Act which was merely to
provide for the transference to the State of the interests
of the proprietors and tenure-holders in land and of the
mortgagees and lessees of such interests. It was not the
object of the Act, says Mr. Jha, to extinguish debts due
by the proprietors or tenure-holders and so, it would be
reasonable to confine the operation of s. 4 ( d) only to the
claims made against the estates which have vested in the
State and no others. In our opinion, this argument 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 provisioms contained in section 16 in regard to the scaling
down of the debts due by the proprietors and tcnureholders clearly indicate that another object which the
Act wanted to achieve was to give some redress to the
debtors whose estates have been taken away frQIII them
by the notifications issued under section 3. Therefore
in construing s. 4(d), it would not be right to assum~
that the interests of the debtors affected by the provisiOillS
of the Act do not fall within the protection of the Act"
and again at page 578 :
"Having regard to the said scheme it is difficult to
confine the application of s. 4(d) oniy to execution
proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an executiQn proceeding to recover the decretal amount from
the. estate which has already vested in the State, would
be mcompetent because the said estate no longer belong
to the judgment-debtor."
l Sup Ci-69-9
916
SUPREME COURT REPORTS
(1969] 3 S.C.R.
Summarising the effect of the aforementioned decisions thts
A
is what this Court observed in Raj Kishore's case(' )-a case aris·
ing under \)le Act :
"From the principles laid down by this Court in the
above two decisi<>ins, it follows that where the whole of
the property mortgaged is an est'llte, there can be no
doubt that the procedure prescpbed by Chapter IV has
to be followed, in order that the amount due to the ere·
ditor should be determined by the claims officer and the
decision of the claims officer or the Board has
been
made final by the Act."
For the reasons mentioned earlier we are of the opinion that
the decision of the majority of the judges in the Full BtW:h decision in Sidheshwar Prasad Singh v. Ram Saroop Singh(') is not
correct.
The true ·effect of the decisions of this Court in Rana
Sheo Ambar Singh's case(8 ) and Krishna Prasad's case(') is as
explained by Kamla Sahai, J. in that case.
In the result this appeal fails and it is dismissed with costs.
Y.P.
(I) (1967]2 s.c.R. 56 A.l.R. 1967 s.c. 801.
(3) [1962] 2 S.C.R. 441.
Appeal dismissed
12) 1963 B.L.J.R. 802.
(4) [196~] Supp. 3 S.C.R. 564