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Chaudhari Vikram Singh and ors. Vs. Lehri Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1943All204
AppellantChaudhari Vikram Singh and ors.
RespondentLehri Singh and ors.
Excerpt:
- - it was also held that the plaintiffs had failed to prove that the defendants realised any profits from the property and finally it was held that the plaintiffs far from suffering any loss had actually benefited by the provisions of the act being extended to them and therefore were not entitled to any relief. the language of the section is perfectly clear and can only mean that when the mortgaged property is in the hands of a subsequent transferee, etc. therefore, we direct that the parties will bear their own costs in this court as well as in the court below......they had mortgaged for some properties in village rasoolpur belonging to randhir singh and vikram singh plaintiffs, and the latter undertook the liability of paying the mortgages created by nawab singh. and babu ram. suit no. 64 of 1930 was brought by the mortgagees on the basis of the two mortgages mentioned above against the original mortgagors and their transferees, namely, randhir singh and vikram singh. a preliminary decree was obtained on 27th october 1930 and this decree was made final on 5th december 1931.2. the mortgagee-decree-holders applied for execution by sale of the properties belonging to vikram singh and randhir singh. on 14th april 1932 the civil court transferred the decree to the collector under the provisions of section 68, civil p.c., for execution. the.....
Judgment:

Bajpai, J.

1. This is a plaintiffs' appeal and arises out of a suit for possession of zamindari property and mesne profits. The facts giving rise to this appeal are to a great extent undisputed and may be stated : On 23rd July 1934 Nawab Singh, defendant 3, and Babu Ram, father of Jaipal, defendant 4 mortgaged certain properties in favour of Lehri Singh, defendant 1 Girraj Singh, deceased brother of Lehri Singh and Narain Singh, defendant 2, for Rs. 3000. On 18th September 1924, a second mortgage was executed by the same persons in favour of the same mortgagees for Rs. 1300. The properties covered by the mortgages were in the village of Rori and in the village of Rasoolpur. On 7th August 1926, Nawab Singh and Babu Ram exchanged their properties which they had mortgaged for some properties in village Rasoolpur belonging to Randhir Singh and Vikram Singh plaintiffs, and the latter undertook the liability of paying the mortgages created by Nawab Singh. and Babu Ram. Suit No. 64 of 1930 was brought by the mortgagees on the basis of the two mortgages mentioned above against the original mortgagors and their transferees, namely, Randhir Singh and Vikram Singh. A preliminary decree was obtained on 27th October 1930 and this decree was made final on 5th December 1931.

2. The mortgagee-decree-holders applied for execution by sale of the properties belonging to Vikram Singh and Randhir Singh. On 14th April 1932 the civil Court transferred the decree to the Collector under the provisions of Section 68, Civil P.C., for execution. The judgment-debtors paid Rs. 2990 and the sale was therefore postponed, but the execution proceedings remained pending. There were certain infructuous sales (in the sense that they were set aside) on the first occasion on 20th May 1933 and on the second occasion some time afterwards (the exact date cannot be ascertained from the record). In the year 1935 the U.P. Regulation of Sales Act, 26 of 1934, came into force, and the Assistant Collector, First Class, Meerut, started proceedings under the said Act. A notice was issued on 22nd January 1936 under Section 3, Sub-section (3) of the Act for the purpose of fixing the net profits of the property and the multiple thereof by the Assistant Collector to the parties directing them to appear on 14th March 1936. Notice on the judgment-debtors was served by affixation, and the Assistant Collector on 14th March 1936 passed an order that the whole property except of khewat No. 2 mahal 6 biswas of the judgment-debtors in Mauza Rori be transferred to the decree-holders in full satisfaction of their decretal amount. On 25th January 1937 the property was finally transferred to the decree, holders for Rs. 7628 and the decree-holders obtained possession on 6th March 1937. Some time prior to this the judgment-debtors had presented an application that the orders for the transfer of the property passed on 14th March 1936 be set aside, but the Sub-Divisional Officer rejected the application on 19th September 1936.

3. The present suit was filed by Chaudhari Randhir Singh and Chaudhari Vikram Singh on 5th July 1937 for recovery of possession of the property sold and for mesne profits. The suit has been dismissed by the Court below and hence the plaintiffs have filed the present appeal. Chaudhari Randhir Singh died after the decision of the Court below, and the present appeal has been filed by Chaudhari Vikram Singh and the heirs of Chaudhari Randhir Singh. The plaintiffs alleged that the Circle Officer of Tahsil Ghaziabad, Mr. Raghunath Das Tondon, had no power to take proceedings under Act No. 26 of 1934, the U.P. Regulation of Sales Act, according to Section 10 of the said Act, and the transfer that was effected in favour of the decree-holders on 25th January 1937 was totally invalid and null and void, that the notice that was issued under the Act on 22nd January 1936 was never served on the plaintiffs and that the order for the transfer of the property was obtained by the defendants behind the back of the plaintiffs. The main contention on which the suit was brought was that all the proceedings taken by the Circle Officer under Act 26 of 1934 were invalid and the possession of the defendants over the property was that of usurpers and that the plaintiffs were entitled to recover possession of the property which was wrongfully sold. It may be mentioned -- for a great deal has been made of the fact by learned Counsel for the respondents--that there were no allegations in the plaint that the plaintiffs had suffered any pecuniary damage by reason of the proceedings under Act No. 26 of 1934 beyond the statement that the proceedings were entirely illegal and inoperative. The defence was that the proceedings under Act No. 26 of 1934 were taken by a competent Court and were binding on the plaintiffs, that the plaintiff's had really benefited by the proceedings and that the 'claim was not entertainable in a civil Court. It was also said that the plaintiffs' suit was barred by time.

4. The Court below came to the conclusion that the Collector or the Circle Officer of Tahsil Ghaziabad had jurisdiction to take proceedings under the U.P. Regulation of Sales Act, that the plaintiffs were not served with the notice issued to them in connexion with the fixation of net profits and that the suit was maintainable and was not barred by time. It was also held that the plaintiffs had failed to prove that the defendants realised any profits from the property and finally it was held that the plaintiffs far from suffering any loss had actually benefited by the provisions of the Act being extended to them and therefore were not entitled to any relief. In the appeal before us, the main controversy has centered round the question as to whether the plaintiffs had any cause of action for the present suit and whether the provisions of the U.P. Regulation of Sales Act were applicable to the facts of the present case. It has not been contended by the respondents that the plaintiffs' suit was barred by time or that the finding of the Court below that notice was not served on the plaintiffs when the question of net profits was being determined by the Circle Officer was wrong.

5. Learned Counsel for the plaintiffs has argued that Local Act No. 26 of 1934 is wholly inapplicable to the facts of the present case. It is conceded that the plaintiffs are subsequent transferees who have taken the transfer subject to the mortgages on the basis of which the defendants obtained their decree. Section 10 of the Act says that nothing in this Act shall apply to a mortgage decree sought to be executed by sale of the mortgaged property in the hands of a subsequent transferee who has taken the transfer subject to the mortgage on the basis of which such decree has been obtained. The language of the section is perfectly clear and can only mean that when the mortgaged property is in the hands of a subsequent transferee, etc. etc., and a mortgage decree has been obtained the provisions of the Act will not apply to such a mortgage decree. The Court below has looked to the Preamble of the Act and its general scheme and has then reviewed all the sections of the Act leading up, to Section 10 and has come to the conclusion that Section 10 was enacted:

In order to show that that privilege should not be extended to a subsequent transferee who has taken the transfer with his eyes open subject to the mortgage on the basis of which the mortgage decree was passed. There is nothing in the section to indicate that the Legislature intended to create a bar of jurisdiction in cases covered by it. If such had been the intention, entirely different language would have been used. The language, as it stands, when considered with the object and the scheme of the Act, leaves no doubt that this section was not intended to take away the jurisdiction of the Collector in the case of mortgage decrees of the nature contemplated by it, but only to make it clear that the benefit of the Act should not be extended to subsequent transferees who have taken the transfer subject to the mortgage on the basis of which the mortgage decree sought to be executed was passed.

6. We have no quarrel with the reasoning of the learned Judge so far as the general scheme of the Act is concerned, but we do not know what other language could have been used by the Legislature if the intention was 'to create a bar of jurisdiction in cases covered by it.' The language is perfectly plain without any ambiguity and under the circumstances we have got to interpret the section as it stands without going into the scheme and object of the enactment. And, as we read the provision of law round which the controversy has centered we can come to one conclusion only, and it is that when a mortgage decree is sought to be executed by sale of the mortgaged property in the hands of a subsequent transferee, etc. etc., the provisions of the Act will not apply, and where the property has been transferred to the Collector by the civil Court for execution of such a decree under Section 68, Civil P.C., the Collector has got to proceed according to Schedule 3, Civil P.C., or the rules framed by the Local Government under Section 70 of the Code.

7. It was contended on behalf of the respondents that neither in the Court below nor before us any attempt had been made on behalf of the plaintiffs-appellants to show that they had suffered any damage by reason of the proceedings under the Regulation of Sales Act. On one occasion, the present property along with some other property was sold for Rs. 6800 and on a second occasion they were sold for Rs. 6700, whereas under the present proceedings the plaint property alone has been sold for Rs. 7628 but the question is not as to whether the plaintiffs have suffered any damage or not. There has been a violation of a legal right and that violation affords a cause of action to the plaintiffs and Section 9, Civil P.C., gives jurisdiction to civil Courts to try the present suit. An attempt was made to argue that the suit was not maintainable, and reliance was placed on Rule 12 of chap. 4, General Rules (civil) for civil Courts corrected up to 31st March 1934. Our attention was drawn to the cases in Chulhi Upadhya v. Badri Upadhya ('21) 8 A.I.R. 1921 All. 225, Girdhari Lal v. Jhaman Lal : AIR1927All203 , Shahzad Singh v. Hanuman Rai ('24) 11 A.I.R. 1924 All. 704 and Krishna Das v. Ram Gopal Singh : AIR1928All558 . We have little doubt that if the procedure of the Circle Officer could be referred to any paragraph of Schedule 3 or to any rules framed under Section 70 of the Code, the civil Courts would have had no power to interfere, but where, as here the Collector or the Circle Officer has acted and purported to act under the provisions of an Act which is wholly inapplicable to the facts of the present case a civil Court will have the right to interfere.

8. It was said that the Collector's action was referable to para. 10 of Schedule 3, more particularly to Clause (c) of para. 10. The action of the Circle Officer, it is argued, might be said to amount to buying in the property offered for sale and reselling the same by private contract. When we look at the rules framed by the Local Government under Section 70 of the Code, we find that where the Collector wishes to buy in the property under Clause (e) of Rule 10 of Schedule 3 he has got to take the previous sanction of the Governor in Council and he has to submit his proposals to that effect through the Commissioner of the Division for the orders of the Governor-in Council. It is only with great violence that we can say that the Collector in the present case must be deemed to have bought in the property offered for sale and to have resold the same by private contract, and that the error of the Circle officer in the present case was not an error of procedure with which we may not have the power to interfere but is an error on a question of jurisdiction.

9. We are also of the opinion that under the circumstances of the present case, where the property of the plaintiffs has been wrongfully sold by recourse to an enactment which is wholly inapplicable, it was not necessary for the plaintiffs to show that they had suffered any pecuniary damage. Their legal rights were violated and a cause of action was afforded to them. For the reasons given above, we allow this appeal, set aside the decree of the Court below and decree the plaintiffs' suit in terms of relief (a) only, namely, for recovery of possession of the zamindari property mentioned in the plaint. As we said before, the plaintiffs have not shown that the defendants have realized any mesne profits and therefore the plaintiffs' claim for recovery of mesne profits was rightly dismissed. As to costs, the plaintiffs have not shown that they suffered any pecuniary damage. Therefore, we direct that the parties will bear their own costs in this Court as well as in the Court below.


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