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Karam HusaIn Mukhtar Vs. Mohammad Khalil - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1946All509
AppellantKaram HusaIn Mukhtar
RespondentMohammad Khalil
Excerpt:
.....the present case was precisely the point which was decided in that ruling. the rule that every subordinate judge is, in duty bound, loyally to accept the rulings of the high court to which he is subordinate is a well-recognized rule, to which attention has been called by this court on a number of occasions. , had to consider the genesi of this rule at some length and in the course of their judgment, they remarked that the judge of a subordinate court however brilliant and well-trained a lawyer he may be, is not entitled to assume the powers of an appellate court or to refuse to follow the decision of the high court to which his court is subordinate, and that it is the duty of every subordinate judge to accept loyally the rulings of this court unless and until they have been overruled by..........in accordance with section 4 of that act that he would not execute the decree against the land, agricultural produce or person of the judgment debtor. thereupon the judgment-debtor made an application for amendment of the decree under section 8 of that act. the decree-holder opposed the application for amendment filed by the judgment-debtor on the ground that by reason of the declaration made by him in accordance with section 4 of the act, the amendment application was not maintainable. the reply of the judgment-debtor to this contention was that the declaration was ineffective and inoperative, inasmuch as the decree did not affect the land, agricultural produce or person of the judgment-debtor. thus the issue between the parties resolved itself into the question whether section.....
Judgment:

Pathak, J.

1. This appeal raises a question of the interpretation of Section 4, U.P. Debt Redemption Act, XII [13] of 1940. The decree holder who is the appellant obtained a decree on foot of a mortgage in suit No. 41 of 1938 against the respondent. The property mortgaged consisted of a house and land appurtenant thereto situate within the limits of the Notified Area Committee, Basti. It is noteworthy that on the date of the suit the personal remedy of the creditor was barred by time. The decree-holder put the decree in execution, and the judgment-debtor being an agriculturist within the meaning of the U.P. Debt Redemption Act, the decree-holder made a declaration in accordance with Section 4 of that Act that he would not execute the decree against the land, agricultural produce or person of the judgment debtor. Thereupon the judgment-debtor made an application for amendment of the decree under Section 8 of that Act. The decree-holder opposed the application for amendment filed by the judgment-debtor on the ground that by reason of the declaration made by him in accordance with Section 4 of the Act, the amendment application was not maintainable. The reply of the judgment-debtor to this contention was that the declaration was ineffective and inoperative, inasmuch as the decree did not affect the land, agricultural produce or person of the judgment-debtor. Thus the issue between the parties resolved itself into the question whether Section 4 will apply to the case of a mortgage decree, where the personal remedy against the mortgagor was time-barred on the date of the suit and the mortgaged property was neither land, nor agricultural produce. The learned Civil Judge upheld the contention of the judgment-debtor and directed amendment of the decree in accordance with Section 8, U.P. Debt Redemption Act. It is necessary at this stage to quote the relevant portion of Section 4 of that Act:

(1) The provisions of this Act shall not apply to a suit for the recovery of a loan from an agriculturist where the creditor declares in accordance with the provisions of Sub-section 2 that if a decree is passed in his favour either for the whole or part of the claim such decree shall not be executed against the land, agricultural produce or person of such agriculturist.

(2) The declaration mentioned in Sub-section (1) shall in the case of a suit pending at the commencement of this Act, be made at any time before the decision of the suit, and in the case of a suit instituted after the commencement of this Act, in the plaint.

(3) No decree recoverable from an agriculturist shall be amended under the provisions of this Act if the creditor declares that such decree shall not be executed against the land, agricultural produce or person of such agriculturist.

2. While conceding that Section 4, Sub-section (3) applies to every kind of decree against an agriculturist, the learned Civil Judge held that:

In every case to which the application of this provision is sought the creditor must have right to proceed against the land, agricultural produce or person of the agriculturist concerned.

3. Before examining the reasoning of the learned Civil Judge and the soundness or otherwise of his conclusion, one aspect of the case calls for serious notice. In the latter part of the judgment, he referred to the case in Bishambhar Nath v. Radhe Shiam ('42) 29 A.I.R. 1942 All. 252. In that case, an application was made for the amendment of a mortgage decree under Section 8, U.P. Debt Redemption Act. The decree-holder gave, a declaration under Section 4, Sub-section (3) and it was contended on behalf of the judgment-debtor that Section 4, Sub-section (3) did not apply to a mortgage decree in which the mortgaged property was other than land in a mahal. This contention of the judgment-debtor was based upon the argument that in the case of a mortgage where the mortgaged property was other than land in a mahal, the mortgage decree could not be executed against the land, agricultural produce or person of the mortgagor and, therefore, the declaration under Section 4, Sub-section (3) would be ineffective. Ganga Nath J., ruled that Section 4 applied to all classes of decrees and he repelled the contention of the judgment-debtor with the result that the mortgage decree was not amended. In our opinion, the point in issue in the present case was precisely the point which was decided in that ruling. In that case, there was a definite pronouncement made by this Court, that Section 4 was not restricted, in its application, to decrees executable against the land, agricultural produce or person of an agriculturist. It is a matter of surprise that the learned Civil Judge arrived at his decision in the teeth of this clear decision of this Court.

4. The way in which he has discussed that ruling in his judgment betrays a lack of appreciation either of the impropriety of not following the decisions of this Court or the principles which guide the application of judicial precedents. It is the bounden duty of the Judges of Courts subordinate to this Court to implicitly follow the decisions pronounced by this Court and we deprecate any attempt on their part to criticise them or to refuse to follow them. The rule that every subordinate Judge is, in duty bound, loyally to accept the rulings of the High Court to which he is subordinate is a well-recognized rule, to which attention has been called by this Court on a number of occasions. In King Emperor v. Deni ('05) 28 All. 62 Stanley C.J., and Burkith, J., had to consider the genesi of this rule at some length and in the course of their judgment, they remarked that the Judge of a subordinate Court however brilliant and well-trained a lawyer he may be, is not entitled to assume the powers of an appellate court or to refuse to follow the decision of the High Court to which his Court is subordinate, and that it is the duty of every subordinate Judge to accept loyally the rulings of this Court unless and until they have been overruled by a higher tribunal. In our judgment, the learned Civil Judge has deviated from this rule and it is a matter of regret that he has tried to cover the departure from it by an attempt to distinguish the ruling of this Court. The ground of distinction relied upon by him was that the reported decision was founded on a consideration of Section 21, Debt Redemption Act, and that the aspects of the case, on consideration of which he arrived at his conclusion, were not presented before the High Court. No authority is necessary for the proposition that a judicial precedent of a higher Court does not cease to be binding upon subordinate Courts merely because all the relevant reasons in support of or against the view taken by the higher Court are not mentioned in the judgment or the actual decision is based upon a reason which does not appeal to the subordinate Judge.

5. To advert to the point in controversy in the appeal, it appears to us that the decision of Ganga Nath, J., laid down the law correctly. The only argument that we have to examine is whether the supposed futility of a declaration that the decree shall not be executed against the land, agricultural produce or person of an agriculturist, in a case where the personal remedy is barred by limitation and the mortgaged property does not consist of the land and agricultural produce would affect and control the meaning of Sub-section 3 of Section 4. The language of the statute is plain and unambiguous and the question is whether it is not permissible for the Courts to engraft an exception upon the rule by saying that Sub-section 3 of Section 4 would not apply to cases where it would be superfluous to make a declaration under Sub-section (1). The rule of interpretation applicable to such cases is thus stated by Maxwell in his treatise on the Interpretation of Statutes (Edn. 7, p. 3):

The Legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. It matters not, in such a case, what the consequences may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is indicated by the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. If the words go beyond what was probably the intention, effect must nevertheless be given to them. They cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be it must receive its full effect. When once the meaning is plain, it is not the provision of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable but to expound it as it stands, according to the real sense of the word.

6. The intention of the Legislature in enacting Section 4 was to deny to a debtor the benefits of the Act where the creditor guaranteed to him immunity in respect of his land, agricultural produce and his person. The interpretation which we are inclined to put upon the section does not affect, to any extent, this immunity and no injustice is involved in this interpretation.

7. It cannot be denied that if in a decree the land and agricultural produce are mortgaged along with other kinds of properties belonging to an agriculturist, Sub-section 3 of Section 4 would be applicable. It is not reasonable to suppose that the result should be different in a case where the properties mortgaged are other than land or agricultural produce. We cannot attribute an intention to the Legislature that, where there is no danger Involved to the debtor's land, agricultural produce and person by reason of the fact that the personal remedy is barred and the land and agricultural produce are not mortgaged, the Legislature should have conferred benefits upon the debtor under the Act, while if the creditor guaranteed immunity to him in respect of his land, agricultural produce and person where it was open to the creditor to proceed against the debtor, his land or agricultural produce, he should lose all benefits thereunder. For the reasons, we do not feel justified in interpreting the language of Sub-section 3 of Section 4 in a manner which would result in creating an exception not warranted by the plain language of the statute and we hold that Sub-section 3 of Section 4 will apply to the present case.

8. For the reasons indicated above, we are of opinion that the judgment of the lower Court is incorrect and must be reversed and we, therefore, allow the appeal with costs & dismiss the application for amendment off the decree in question.


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