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Aziz Mirza Vs. Mt. Tayabba Begum - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1949All651
AppellantAziz Mirza
RespondentMt. Tayabba Begum
Excerpt:
- - 8. i agree and would like to add that, under section 26, debt redemption act, the provincial government has been empowered to make rules consistent with and for carrying out the purposes of the act. and on such transfer the decree will be deemed to be satisfied upto the value of such land and all the rights of the agriculturist in such land shall be deemed to have been sold to the decree-holder......transferred under section 68, civil p.c., praying that the benefit of sections 16 and 17, u.p. debt redemption act, 1940 (u. p. act xiii [13] of 1940) be given to him, has been directed by the munsif to be recalled from the court of the collector to his own court for disposal.2. a mortgage was executed by the appellant in favour of the respondent on 7th november, 1980. on 20th february 1933, the respondent obtained a decree against the appellant on the foot of that mortgage. a final decree was passed on 9th december 1933. some time after that the appellant became insolvent and the official receiver was put in charge of all his property on 27th may 1937. on 7th may 1942, the appellant made an application to the court for the amendment of the decree under section 8, debt redemption.....
Judgment:

Harish Chandra, J.

1. This is a second appeal on behalf of the judgment-debtor, Aziz Mirza, from the judgment and decree of the District Judge of Agra confirming the judgment and decree of the Munsif of Agra by which an application made by the appellant to the Collector, to whom the execution of a mortgage decree obtained by the respondent, Smt. Tayyaba Begam, against the appellant had been transferred under Section 68, Civil P.C., praying that the benefit of Sections 16 and 17, U.P. Debt Redemption Act, 1940 (U. P. Act XIII [13] of 1940) be given to him, has been directed by the Munsif to be recalled from the Court of the Collector to his own Court for disposal.

2. A mortgage was executed by the appellant in favour of the respondent on 7th November, 1980. On 20th February 1933, the respondent obtained a decree against the appellant on the foot of that mortgage. A final decree was passed on 9th December 1933. Some time after that the appellant became insolvent and the Official Receiver was put in charge of all his property on 27th May 1937. On 7th May 1942, the appellant made an application to the Court for the amendment of the decree under Section 8, Debt Redemption Act. This application was, however, dismissed on 7th July 1942, on the ground that all the property of the judgment-debtor having vested in the Official Receiver he was not an agriculturist and was therefore not entitled to the benefit of the Debt Redemption Act. Thereafter the execution of the decree was transferred to the Collector under Section 68, Civil P.C. The execution proceedings were put in charge of an Assistant Collector and the appellant made an application before him praying that the benefit of Sections 16 and 17, Debt Redemption Act be given to him. This application was dismissed by the Assistant Collector. There was, however, an appeal to the Commissioner which was also dismissed. Thereafter, there was an appeal to the Board of Revenue which however, allowed the appeal. The view taken by the Board of Revenue was that the Assistant Collector had no power to dispose of the application. It accordingly restored the application and Bent it to the Collector for disposal. In the meanwhile on 18th August 1943, the decree-holder made an application to the Court of the Munsif by whom the original decree had been passed praying that the appellants' application under Sections 16 and 17, Debt Redemption Act pending before the Collector be recalled and disposed of by it according to law. The Munsif allowed the application by an order dated 26th November 1943, and directed that the papers be recalled from the Collector and fixed a date for the determination of the question whether the appellant was or was not entitled to the benefit of Sections 16 and 17, Debt Redemption Act. The appellant went up in appeal to the District Judge who as we have seen, dismissed the appeal. Ha has now come up to the High Court in second appeal.

3. A perusal of Sections 16 and 17, Debt Redemption Act shows that an application under those sections is to be dealt with by 'the Court executing the decree.' The Court executing the decree is obviously not the authority to which the execution of a decree has been transferred under Section 68, Civil P.C., and the question is whether the powers of the Court executing the decree under Sections 16 and 17 or any other section of they, Debt Redemption Act can or cannot be conferred by the Provincial Government upon the Collector to whom the execution of a decree may have been transferred under Section 68, Civil P.C. The Court below has taken the view that such an order would be ultra vires and cannot be made under Section 25 according to which the Provincial Government is authorised to make rules for carrying out the purposes of the Act such as may be consistent with the Act. His view is that such a rule would not be consistent with the provisions of Sections 16 and 17 which provide for the exercise of the powers under those sections by the Court executing the decree,

4. Another question that arises is whether in case the Provincial Government has the power to snake a rule conferring upon the Collector the powers of the Court executing the decree under Sections 16 and 17 of the Act, such powers can be said to have been actually conferred upon the Collector by the rules which have been framed by the-Provincial Government under those sections.

5. Section 24 of the Act lays down that the provisions of the Code of Civil Procedure shall apply to all proceedings under the Act, 'save in so far as they are inconsistent with the provisions of this Act,' Clause (b) of Sub-section (1) of Section 70, Civil P.C., authorises the Provincial Government to make rules

conferring upon the Collector or any gazetted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector.

By para. 1012B of Ch. 40 of the Revenue Manual, vol. l, the power has in fact been conferred upon the Collector to exercise

all or any of the powers under the Civil Procedure Code, so far as such powers are not inconsistent with the provisions of the sub-rules in this chapter and in the Schedule which a civil Court might have exercised had the decree not been transferred to the Collector for execution.

If Section 70 also applies to proceedings to which the Debt Redemption Act applies it is obvious that the Provincial Government has the power to make a rule authorising the Collector to exercise the powers of the Court executing the decree' under Sections 16 and 17, Debt Redemption Act. It is argued on behalf of the respondent that Section 70 (1) (b) is inconsistent with the provisions of Sections 16 and 17, Debt Redemption Act. In my view this is not so. As we know, the Code of Civil Procedure also confers various powers upon the Court executing the decree. But according to the scheme of the Code when the execution of a decree has been transferred to the Collector, the Provincial Government has the power to confer upon the Collector all or any of the powers exercisable by the Court executing the decree. There is nothing in Section 24, Debt Redemption Act to suggest that this scheme in regard to the execution of decrees in general is not to be followed with respect to decrees to which the Debt Redemption Act applies and in my view Section 70, Civil P.C., cannot be regarded as inconsistent with the provisions of the Debt Redemption Act and will apply to all proceedings to which that Act applies. Thus the power of the Provincial Government to make rules under Section 26, Debt Redemption Act would include a power to confer upon the Collector all or any of the powers of the Court executing the decree as provided in the Debt Redemption Act. A rule therefore conferring upon the Collector the powers of the Court executing the decree under Sections 16 and 17 of the Act cannot be regarded as ultra vires.

6. The next question that arises is whether the actual rules which have been framed by the Provincial Government under Section 16 do confer such power upon the Collector or not. Rule 3 runs as follows:

The execution of all decrees to which the Act applies in which a civil Court has ordered any land (Situated in the United Provinces or any interest in such land, to be sold or otherwise transferred, shall be transferred to the Collector.

No doubt, this rule does not expressly confer upon the Collector to whom the execution of a decree under the Act has been transferred to exercise all or any of the powers of the Court executing the decree. Then follows a series of rules prescribing the manner in which the Collector is to proceed under Sections 16 and 17 of the Act and if the Collector had no power to exercise the powers conferred upon the Court executing the decree under Sections 16 and 17 of the Act, these rules would be quite meaningless. A perusal of Rule 3 in conjunction with the rest of the rules framed under Sections 16 and 17 of the Act, in my view, indicates that although the powers exercisable by the Court executing the decree under Sections 16 and 17 have not been conferred upon the Collector by the Provincial Government in express terms, they will be deemed to have been so conferred by necessary implication. No special significance attaches to the words 'or otherwise transferred' in Rule 3 and there is nothing in that rule to suggest that it is for the civil Court to determine whether the land or any interest in such land is to be sold or otherwise transferred in accordance with the provisions of Sections 16 and 17. All that the Court which passed the decree has to determine is that the execution of the decree involves the selling or otherwise transferring of any land or any interest in such land and as soon as it finds that this is so, the execution of the decree is to be transferred by it to the Collector and it is for the Collector to proceed under Sections 16 and 17 of the Act in accordance with the rules laid down by the Provincial Government. The execution of the decree in the present case was transferred by the Munsif to the Collector after the coming into force of the U.P. Debt Redemption Act and such transfer will be deemed to be a transfer under Rule 3 of the Rules framed by the Provincial Government tinder Section 16 of the Act, provided the Debt Redemption Act applies. It is argued on behalf of the respondent that if the Collector was the proper authority to proceed under Sections 16 and 17 of the Act after the execution of the decree has been transferred to him, a conflict may arise between the view taken by the Collector and the view taken by the civil Court as to the applicability of the Debt Redemption Act to the decree. But this is a question which does not call for consideration in the present case, I may, however, add that the matters which arise for consideration in Section 8 and in Sections 16 and 17 of the Act are not identical.

7. I would accordingly allow the appeal and setting aside the judgment and decree of the Court below, dismiss the respondent's application with costs throughout.

Bhargava, J.

8. I agree and would like to add that, under Section 26, Debt Redemption Act, the Provincial Government has been empowered to make rules consistent with and for carrying out the purposes of the Act. The main purpose of the Act is to provide for further relief from indebtedness to agriculturists. The Act makes provision for amendment of decrees passed against them and affords protection from attachment to two-thirds of their agricultural produce. It prescribes a special procedure to be followed by execution Courts, when the land of an agriculturist is sought to be sold in execution of any decree to which the Act applies, and it provides that, unless the agriculturist expresses his desire in writing to have his land put to sale, the land be transferred to the decree-holder in whole or in part in accordance with the procedure therein prescribed (Section 16). It also provides for protection of land of certain agriculturists .from sale or transfer in execution of decrees against them (Section 17). Therefore, for all these purposes the Government can make rules consistent with the Act.

9. When the holder of a decree desires to execute it he must apply to the Court which passed the decree. That Court may itself execute it or send it for execution to another Court. If the Court executing the decree finds that it is a decree to which the Debt Redemption Act applies and, in execution of that decree, the decree-holder has applied for sale of the land of an agriculturist it will have to follow the procedure laid down in Section 16 of the Act. If the agriculturist desires to have the land put to sale, and has applied in writing to the Court expressing such a desire, the Court shall sell the land in accordance with the provisions of the Code of Civil Procedure. In case the agriculturist does not express any such desire, the Court shall in accordance with the rules made by the Provincial Government, determine the annual value of such land in particular year, calculate the value of the land by multiplying the annual value by the prescribed multiple and transfer the whole land or a sufficient part thereof to the decree-holder; and on such transfer the decree will be deemed to be satisfied upto the value of such land and all the rights of the agriculturist in such land shall be deemed to have been sold to the decree-holder.

10. Thus, Section 16, Debt Redemption Act, contemplates sale of the land of an agriculturist and also its transfer otherwise than by means of a sale in execution of and for satisfaction of a decree against him, and the Court executing the decree has to decide whether the land is to be sold or otherwise transferred. After recording its decision, the Court has, in either case, to transfer the execution to the Collector, under Rule 68, U.P. Debt Redemption Rules, 1941.

11. Rule 3 is in these terms:

The execution of all decrees to which the Act applies in which a civil Court has ordered any land situated in the United Provinces or any interest in such land, to be sold or otherwise transferred, shall be transferred to the Collector.

12. It has been argued by the respondent's learned Counsel that, under Rule 3 before the execution is transferred to the Collector, the civil Court has to decide finally whether the land is to be 'transferred', and that if the rule purports to confer upon the Collector the powers exercisable by the Court under S3. 16 and 17 of the Act the Provincial Government had no power to make the rule. As already stated, the Court executing the decree has certainly to decide whether the land is to be sold or otherwise transferred; but the rule does not say that the Court must also determine the value of the land and whether the whole or part of the land be transferred to the decree-holder. The rules which come after Rule 3 expressly provide that the Collector must do that. The words 'otherwise transferred' merely convey the idea that the agriculturist has not expressed the desire that the land be put up to sale and it has to be transferred in the manner laid down in Section 16. Therefore, the argument that the civil Court has to decide finally that the land be 'transferred' has no force.

13. Now, I proceed to deal with the argument that the Provincial Government had no power to make Rule 3 or the rule3 subsequent to it. It is not disputed that if the land were to be sold the Court would at once transfer the execution to the Collector, who would in that case exercise all the powers of the Court executing the decree, those powers having been conferred upon him by the Provincial Government under Section 70 (1) (b), Civil P.C. Even in case the land were to be transferred otherwise than by sale, under Section 68 of the Code read with Rule 3 aforesaid, the Court would transfer the execution to the Collector. When the execution is thus transferred to the Collector, all the powers of the Court executing the decree exercisable under the Code will be exercised by the Collector. True, there is no clear provision in the rules that the powers of the Court under Sub-sections (2) to (5) of Section 16, Debt Redemption Act will also be exercised by the Collector, but there can be little doubt that these powers could be conferred upon the Collector by the Provincial Government under Section 70 (1) (b) of the Code because Section 24 of the Act makes such provisions of the Code as are not inconsistent with the provisions of the Act applicable to the proceedings under the Act, and under Section 26 of the Act the Provincial Government had been empowered to frame rules for, carrying out the purpose of the Act. There is no inconsistency between the provisions of Section 70 of the Code and Section 26 or any other provision of the Act, That the Provincial Government has conferred these powers on the Collector is clear from Rules 4 to 8 of the Rules aforesaid. The Court has to determine the annual value of the land in particular years and to calculate the value of the land before transferring it to the decree-holder. Rule 4 authorises the Collector to determine the local rate, Rules 5 to 7 lay down the method to be adopted by the Collector in calculating the annual value of unprotected land, and Rule 8 prescribes the procedure to be followed by the Collector after he has determined the value of the unprotected land and before he has determined the value of the unprotected land and before he proceeds to determine what portion of the land shall be transferred in accordance with Section 16 of the Act to the decree-holder.

14. Under Section 20, Debt Redemption Act, when the land is transferred in accordance with the provisions of Section 16, or when a decree is executed by the grant of a mortgage under the provisions of the second proviso to Sub-section (1) of Section 17 of the Act, the Court has to grant a certificate in each case. These certificates are issued under the signature of the Collector. It was pointed out, on behalf of the respondent, that these certificates have to be issued under the seal of the Court and the Collector is not a Court. Obviously, the words 'the seal of the Court mean' the seal of the Collector because it could never have been intended that the Court executing the decree should put its seal and the certificate should be signed by the Collector. y

15. In my opinion, therefore, the Provincial Government had the power to confer the powers of the Court executing the decree, exercisable under Sub-sections (2) to (5) of Section 16, Debt Redemption Act, upon the Collector and the said powers were, by necessary intendment or implication, conferred by the Government upon the Collector under Section 70 (1) (b), Civil P.C. read with Sections 24 and 26, Debt Redemption Act.

16. The execution of the decree having been transferred to the Collector, under Section 68, Civil P.C. read with Rule 3 of the Rules aforesaid, the Collector was the proper person to dispose of the application made by the appellant and the Court executing the decree had no power to call for that application for disposal.

17. The appeal is allowed, the order dated 26th November 1913. passed by the Munsif directing that the papers be recalled from the Collector is set aside and the respondent's application, dated 18th August 1943, is dismissed with costs throughout.


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