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Sheikh Mohammad Haniff Vs. Vinayak Wamanrao Thakare - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 12 of 1955
Judge
Reported in(1957)59BOMLR727
AppellantSheikh Mohammad Haniff
RespondentVinayak Wamanrao Thakare
DispositionAppeal dismissed
Excerpt:
.....court how far affects determination by court-notice under section 20(1) whether necessary before claims officer can exercise his jurisdiction over matter 'brought before him.; the term 'secured debt' in section 17(a) of the madhya pradesh abolition of proprietary rights (estates, mahals, alienated lands) act, 1950, includes a mortgage decree which is not only against the proprietary interests which have vested in the state but is also against proprietary interests which have not so vested.; rukhmabai v. shamlal [1944] nag. 568, agreed with.; balwantsingh v. bindabai [1942] nag. 357, sadasheorao v. laxmichand [1949] nag. 81 and rukhmanibai v. mahendralal [1949] nag. 182 and balmukund v. maniram [1949] nag. 829 referred to.; the provisions of sections 22, 24, 27 and 28 of the madhya..........in the act are used in different senses. according to the learned counsel a secured debt means a debt secured by a mortgage of proprietary rights while a secured claim means a claim secured by a charge on the proprietary rights. further according to him, the provisions of sections 22, 24, 27 and 28 of the act apply only to a secured claim and not to a secured debt.14. we have already set out the definition of 'a secured debt or a secured claim'. there is only a common definition for the two expressions. from this fact it follows that the expression 'a secured debt' is used synonymously with the expression 'a secured claim'. further there is no warrant for splitting up this definition and saying that a secured debt means only a debt secured by a mortgage of proprietary rights and a.....
Judgment:

Mudholkar, J.

1. This is an appeal by the plaintiff's from an order of the Additional District Judge, Wardha, refusing to pass a final decree in terms of the preliminary decree for sale passed in a mortgage suit on November 9, 1943.

2. The facts are simple and are as follows : On the foot of a mortgage executed by one Smt. Chandrabhagabai on October 21, 1926, the plaintiffs instituted a suit for the recovery of the money due thereon. She died during the pendency of the suit and her legal representatives who are respondents Nos. 1-3 to the appeal were brought on record in her place. Various contentions were raised by them but they were overruled and a preliminary decree for sale was passed by the Court in favour of the appellants. The respondents preferred an appeal from thatdecree which was dismissed by the High Court of Judicature at Nagpur on December 26, 1950. It may be mentioned that the preliminary decree for sale was passed by the Additional District Judge on November 9, 1943. Under the decree the mortgage money was to be paid on or before May 9, 1944, and as it was not paid, the appellants made an application on January 15, 1945, to the Court which passed the decree for making the decree final. That application, however, was not proceeded with by the Court on the ground that, further proceedings were stayed by the High Court. Apparently, those proceedings were not resumed by the Court after the dismissal of the appeal by the High Court on December 26, 1950. In the meanwhile, the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, was passed. It may be mentioned that the mortgaged property consisted of 16 annas malguzari share in mauzas Jamgaon, Lakhanwada and Kalora, all of Tahsil Arvi, and Sir and Khudkasht lands situate therein. In addition, certain house property, kothas and open sites situate in mauza Jamgaon also formed part of the mortgage security.

3. On April 30,1951, the respondents, who were divested of their proprietary right under Section 3 of the Madhya Pradesh Abolition of Proprietary Rights Act, made an application under Section 19(1) of the Act to the Claims Officer appointed by the State Government under Section 18, stating the amounts and particulars of all secured debts and claims against them. It would appear that the only secured debt or claim against them was that due to the appellants under the preliminary decree which was confirmed by the High Court. On November 8, 1951, the respondents filed a further statement before the Claims Officer in which they claimed that the transaction be reopened and that the interest which was exhorbitant should be reduced under Section 24(7) of the Act.

4. A notice of this application was issued to the appellants under Section 21 of the Act. The appellants appeared before the Claims Officer in pursuance of the notice. In their written statement they contended that the respondents could not go behind the decree of the High Court and that the transactions could not be reopened. They further stated that the amount of compensation fixed by the Compensation Officer in respect of the three villages should be paid to them and that as a balance was still outstanding against the respondents after deducting the amount of compensation from the decretal amount, an order should be passed for the recovery of this amount from that part of the mortgaged property which had not vested in the State, but which was comprised in the preliminary decree.

5. The Claims Officer after hearing both parties passed an order on December 28, 1951, under Section 24(1) of the Act determining the amount at Us. 51,200. He deducted therefrom Rs. 1,534-1-0 which was the amount of compensation determined by the Compensation Officer for the three villages and passed an order in respect of the balance of Rs. 49,665-15-0 under Section 27 of the Act making it recoverable from the Sir and Khudkasht lands situate in the three villages.

6. Thereafter the appellants made an application to the Court of the Additional District Judge, Wardha, for making the preliminary decree passed by that Court and confirmed by the High Court at Nagpur final. This application was opposed by the respondents. Their contentions were that consequent on the order made by the Claims Officer on December 28, 1951, the Court had no jurisdiction to make the preliminary decree passed by it on November 9, 1951, final as that decree had ceased to exist and had been replaced by the order made by the Claims Officer on December 28, 1951. According to them the only remedy available to the appellants was that prescribed by Section 28 of the Act and as that remedy had not been availed of, their application for making the preliminary decree final should be dismissed.

7. The appellants in their reply contended that the application under Section 19 of the Act could be made only in respect of a secured debt as defined in Section 17(a) and that a preliminary decree for sale does not fall within the definition of a secured debt as contained in Section 17(a). Therefore according to them, the Claims Officer had no jurisdiction to make any determination of the debts under the Abolition of Proprietary Rights Act and that the order made by him under Sections 24 and 27 was legally ineffective. They pointed out that the Claims Officer had failed to issue a notice for stay of proceedings to the Additional District Judge under Section 20, or to the High Court before whom an application for grant of a certificate under Article 133 of the Constitution was pending, and therefore contended that the Claims Officer could get no jurisdiction to proceed with the application of the respondents under Section 19 of the Act. Thus they contended on this additional ground that the ultimate order passed by the Claims Officer was ineffective having been made without jurisdiction. The learned Additional District Judge over-ruled the contentions and dismissed the appellants' application as incompetent.

8. The two contentions raised before the Court below are reiterated in appeal before us and in addition it is contended that the respondents having objected to the claim preferred by the appellants on the ground that the debt was not incurred and was not binding on them, the Claims Officer had no jurisdiction to determine the amount due on the claim and that consequently his order is without jurisdiction.

9. The expression 'secured debt' is defined thus in Section 17(a) of the Act :

'Secured debt' or 'secured claim' means a debt or claim subsisting on the date of vesting, whether duo or not duo, and secured by the mortgage of or a charge on the proprietary rights divested under Section 3 but shall not include land revenue or anything recoverable as land revenue or any money for the recovery of 'which a suit is barred by limitation.

The question is whether after the passing of a preliminary decree for sale, the original mortgage debt ceases to exist. It is contended by the learned Counsel for the appellants on the authority of the decision in Balwantsingh v. Bindabai [1942] Nag. 357 that a preliminary decree for sale passed in a mortgage suit is not a decree for money. In that case it was held that a preliminary decree in a suit on a mortgage with a condition of foreclosure is not a decree passed for payment of money on the mortgage within the meaning of Section 17 of the C.P. and Berar Relief of Indebtedness Act and that there is no debt left within the meaning of the Act after a preliminary decree for foreclosure has been passed. That decision has been over-ruled in Rukhmabai v. Shamlal [1944] Nag. 568. Apart from the fact that there is difference between a preliminary decree for sale and a preliminary decree for foreclosure, we respectfully agree with the decision of the Full Bench to the effect that the liability of the mortgagor to pay the decretal amount, which is of the essence of a debt, does not come to an end merely by the fact that a preliminary decree has been passed in a suit to enforce a mortgage bond. We may also refer to a decision of a single Judge in Sadasheorao v. Laxmichand [1949] Nag. 81 in which it was held that a mortgage debt did not cease to be a debt within the meaning of Section 2(d) of the C.P. and Berar Relief of Indebtedness Act merely by reason of a final decree for sale. In Rukhmanibai v. Mahendralal [1949] Nag. 182, it was held that a final decree for sale passed under Order XXIV, Rule 5, of the Civil Procedure Code continued to be a decree for the payment of money or for the payment of an amount found due and the judgment-debtor has to pay the amount of the decree passed against him. To the same effect is also the decision in Balmukund v. Maniram [1949] Nag. 829.

10. No doubt there is no express mention of a decree in the definition given in this Act as there is in Section 2(d) of the Relief of Indebtedness Act. That, however, does not make any difference, inasmuch as, as already pointed out, a debt does not cease to be a debt merely because a decree has been passed in a suit for its recovery. That apart, it would be clear from the definition of 'excluded debt' contained in Section 17(c) of the Abolition of Proprietary Rights Act that decretal debts were expressly intended by the Legislature to be within the purview of the definition of a secured debt contained in Section 17(a). An 'excluded debt' as defined by the Act refers to a secured claim due in respect of, among certain other things, any liability in respect of maintenance whether under decree of Court or otherwise. Now, it is clear that we cannot exclude something from a category in which it is not included. Thus, if the term secured debtor secured claim did not include decrees for the recovery of secured debts for scoured claims, surely there would be nothing from which the liability for maintenance under a decree could be excluded.

11. In this connection it will also be useful to quote the fallowing from Corpus Juris Secundum, Vol. 59, Note 342, page 488:

In conformity with the general rule of merger of a cause of action in a judgment rendered thereon ...a mortgage debt, bond or note is merged in a judgment rendered in an action thereon. The merger of the indebtedness in the judgment, however, does not change the nature of the indebtedness with respect to the mortgage the debt does not lose its character as a mortgage indebtedness, the mortgage continues to secure it, and ordinarily is not released, discharged, or satisfied by the judgment on the debt, note, or bond.

Again, in Note 462 at page 732 of the same volume, it stated:

Suit and the recovery of a judgment for the amount of the debt do not change the security of the mortgage. The mortgage in such case becomes security for the payment of the judgment.

12. In the course of the arguments it was suggested that the expressions 'a secured debt' or 'a secured claim,' referral only to such debt or claim as is secured on the property actually divested under Section 8 of the Act and that to the extent that a debt or a claim was secured on property which was not divested under that section the debt or claim was outside the definition of secured debt or claim contained in the Act. la our opinion, it would not be correct to read the definition in such a way. If indeed it were the intention of the Legislature to give a restricted meaning to the terms secured debt or secured claim, it would have said 'secured wholly by the mortgage of or a charge on the proprietary rights divested under Section 3'. For a debt or a claim to fall within the definition all that appears to be required is that at least a part of the security therefor should be property which has vested in the State. Again, the proprietary rights which have been abolished under the Act are only a small portion of the proprietary rights of the former proprietors. It is well known that the proprietary rights which have been abolished were ordinarily regarded as an inadequate security for loans and it was very unusual to find transactions in which the security was confined only to that part of the proprietary rights which have been abolished under the Act. If a restricted meaning is given to the term, it would result in the splitting up of a mortgage security into two : that which has vested in the State and that which has not so vested in the State. Such a construction would neither be natural nor would be in consonance with the intention of the parties to the transactions. Moreover, it would lead to complications for dealing with which special provisions would be necessary. But there are no such provisions in the Act. We, therefore, hold that the term secured debt includes a mortgage decree which is not only against the proprietary interests which have vested in the State but is also against proprietary interests which have not so vested.

13. It was then argued on behalf of the appellants that the expressions 'secured debt' or 'secured claim' occurring in the Act are used in different senses. According to the learned Counsel a secured debt means a debt secured by a mortgage of proprietary rights while a secured claim means a claim secured by a charge on the proprietary rights. Further according to him, the provisions of Sections 22, 24, 27 and 28 of the Act apply only to a secured claim and not to a secured debt.

14. We have already set out the definition of 'a secured debt or a secured claim'. There is only a common definition for the two expressions. From this fact it follows that the expression 'a secured debt' is used synonymously with the expression 'a secured claim'. Further there is no warrant for splitting up this definition and saying that a secured debt means only a debt secured by a mortgage of proprietary rights and a secured claim is only a claim secured by a charge upon the proprietary rights. If it were the intention of the Legislature to define the two expressions in these ways, it would have been quite simple for it to give separate definitions of a secured debt and 'a secured claim'. There is also no warrant for saying that the provisions of Sections 22, 24, 27 and 28 do not apply to a secured debt. No doubt, the term 'secured debt' is not used in Section 22, or in Section 24(I) or Section 27 of the Act. But it is clear from a consideration of these provisions that they were intended to deal with a secured debt. Section 22(1) says that every creditor shall file a written statement of his claim in a certain manner and within a certain time and that every claim not so submitted shall be deemed to have been discharged. The proviso to that section also speaks of the revival of the claim. Sub-section (2) refers to the document on which the claim is based. Apparently, the word 'claim' is used in a wide sense viz. a demand for something due or supposed to be due. The provisions of Section 22 have, however, to be read in the context of the preceding sections, viz, Sections 21 and 19. Among the particulars to be furnished under Section 19(I) are those relating to secured debts and secured claims and the creditors to whom they are due. Section 21 speaks of issuing of a notice to these creditors and then follows Section 22 which requires that every creditor shall file a written statement pertaining to his claim. Naturally therefore, this statement must be confined to a secured debt and a secured claim. Section 24(1) likewise does not refer to a secured debt but to a loan. Now, 'loan', according to the dictionary, means anything lent, especially money at interest. The object with which the provisions of the Act were enacted was not to empower the Claims Officer to make a determination of any and every kind of loan but of only such loans as were secured on the proprietary interest of the outgoing proprietor. The expression must, therefore, be regarded in this limited sense. This is made abundantly clear by Sub-sections (3) and (4) of Section 24. Section 24(3) says that no Claims Officer shall in respect of any secured debt or claim to which chapter IV applies award on account of arrears of interest a sum greater than the principal of the loan as determined under Sub-section (I). This makes it quite clear that the term 'loan' used in Sub-section (1) means a secured debt or a secured claim. Sub-section (4) empowers a Claims Officer to pass an order of discharge if he finds that nothing is due and this discharge relates to a secured debt or a secured claim. Section 27 is dependent on Section 24 and, therefore, the word 'Claim' used therein must necessarily be understood in the same sense as in Section 24. We are, therefore, clear that there is no substance in this part of the argument.

15. Then it was argued that the order of the Claims Officer does not wipe out the preliminary decree and that no provision of the Act has created a bar to the enforcement of the preliminary decree originally passed in that case. Having come to the conclusion that the preliminary decree for sale can also be re-opened by a Claims Officer under Section 24, it would follow that that decree ceases to have any force. No doubt, a decree passed by a civil Court has a sanctity attached to it and cannot ordinarily be got rid of except as provided for in the Civil Procedure Code. We must, however, bear in mind that the powers conferred by Section 24 are of an overriding nature, and once they are exercised even in respect of a matter which has been determined by a civil Court, the determination by the civil Court has to give way. This is made further clear by Sections 28 and 33(c). Section 28 says that any creditor in whose favour an order under Section 27 has been passed may within one year apply to the civil Court for passing a preliminary decree for sale of the encumbered property and that the civil Court shall accordingly pass such a decree. Then Section 33(c) says that the jurisdiction of the civil Courts shall, except as otherwise provided in the Act, be barred in respect of the recovery of any secured debt or claim determined under Section 24 except in the manner provided for in Section 28. Thus, in the matter of recovery of a debt only one remedy is provided and that is as given in Section 28. This clearly means that the other remedies such as those of obtaining a final decree on the basis of a previous preliminary decree obtained otherwise than under Section 28 of the Act and the execution thereof are barred.

16. It was then argued, though faintly, that what the appellants were seeking was not the recovery of any money but only a final decree. It is true that the proceedings taken by the appellants were not strictly speaking for the recovery of any money but they were a step in that direction. When the recovery of money itself is barred, the initial steps taken for that purpose must also be deemed to be barred. That apart, as pointed out, the preliminary decree which the appellants sought to be made final ceased to exist by virtue of the order determining the debt made by the Claims Officer under Section 24 and, therefore, there was nothing which the Court could make final.

17. The next point to be considered is the effect of the failure of the Court to issue notice under Section 20(1). That section reads as follows :

Upon receipt of an application under Section 19 if the Claims Officer finds that any suit or proceeding is pending against the proprietor for the recovery of any amount in respect of a secured debt or claim, he shall issue a notice to the Court concerned and thereupon such suit or proceeding shall be stayed.

It will be clear from this provision that the issue of a notice by a Claims Officer is not a necessary condition for enabling him to exercise jurisdiction over the matter brought up before him. All that the section requires is the stay of the suit or other proceedings in the civil Court and it is for enabling that to be done that a notice is required to be issued. We are not called upon to consider here what the effect of the suit or proceeding carried on in a civil Court would be by reason of the failure of the Court to issue a notice under this section. In the instant case, as already pointed out, no proceedings whatsoever were actually carried on in the civil Court during the pendency of the respondents' application before the Claims Officer.

18. As regards the third point, the provision on which the learned Counsel relies is Section 28(2). We asked him to point out where the respondents have objected to the claim preferred by the appellants on the ground that the debt was not incurred or that the debt is not binding on them. All that he could point out was that the respondents had made a reference to the application for grant of a certificate of fitness for appeal to the Supreme Court and that in that application they had challenged the mortgage debt as well as the debt due thereunder. A bare mention of the fact that the respondents had made an application of this kind without further claiming any relief on the grounds set out in this application would certainly not attract the provisions of Section 28(2). We, therefore, hold that there is no substance in this point either.

19. For all these reasons, we are of opinion that the order appealed from is correct and we accordingly uphold it and dismiss the appeal with costs.


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