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Salamat Ullah Vs. Mt. Maharaj Kuar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All770
AppellantSalamat Ullah
RespondentMt. Maharaj Kuar
Excerpt:
- - (1) that section 7 does not operate to take away the jurisdiction of the civil court to entertain a suit in respect of a private debt incurred before the initiation of proceedings under the encumbered estates act, and (2) that even if it does, the failure of the respondent to draw the attention of the court to the pendency of the proceedings under the act disentitles her now from raising objections in execution proceedings.1. this is an execution of decree appeal. it is directed against the appellate order of the learned district judge bara banki upholding the order of the execution court and allowing the judgment-debtor mt. mahraj kuar's objections under section 47, civil p.c., against the execution of the decree of shaikh salamat ullah appellant.2. the only question involved in this appeal is whether the decree of which the appellant sought execution was or was not a nullity by reason of the fact that it was obtained against the judgment-debtors during the pendency of the encumbered estates act proceedings initiated by some of them. it is admitted on behalf of the appellant that the suit, which resulted in the decree under execution, was filed subsequent to the initiation of proceedings under the.....
Judgment:

1. This is an execution of decree appeal. It is directed against the appellate order of the learned District Judge Bara Banki upholding the order of the execution Court and allowing the judgment-debtor Mt. Mahraj Kuar's objections under Section 47, Civil P.C., against the execution of the decree of Shaikh Salamat Ullah appellant.

2. The only question involved in this appeal is whether the decree of which the appellant sought execution was or was not a nullity by reason of the fact that it was obtained against the judgment-debtors during the pendency of the Encumbered Estates Act proceedings initiated by some of them. It is admitted on behalf of the appellant that the suit, which resulted in the decree under execution, was filed subsequent to the initiation of proceedings under the En-cumbered Estates Act by three judgment-debtors, namely, Chaudhri Maqbulul Rahman, Chaudhri Musbtaqul Rahman and Beni Madho Singh, The decree-holder further admitted that in the proceedings consequent upon the application of the aforesaid persons he preferred certain objections under Section 11, Encumbered Estates Act, and from this it would seem to follow that an order under Section 6, Encumbered Estates Act was passed in due course. The Courts below acting upon this inference have held that the decree under execution was a nullity, and it could not be enforced against the judgment-debtor respondent Mt, Mahraj Kuar.

3. Two points have been urged on behalf of the appellants: (1) that Section 7 does not operate to take away the jurisdiction of the civil Court to entertain a suit in respect of a private debt incurred before the initiation of proceedings under the Encumbered Estates Act, and (2) that even if it does, the failure of the respondent to draw the attention of the Court to the pendency of the proceedings under the Act disentitles her now from raising objections in execution proceedings.

4. We have heard the learned Counsel at length, and have come to the conclusion that neither of the above two contentions has force. Under Section 7 (1) (b), Encumbered Estates Act, a fresh suit or proceeding other than an appeal, review or revision against a decree or order cannot be instituted in any civil or revenue Court in respect of any debt incurred before the passing of the order under Section 6, but if for any reason such a suit or proceeding is in fact instituted the provision is that 'it shall be deemed to be the proceedings pending at the date of the said order within the meaning of Clause (a).' Section 7 (1) (a) provides that all proceedings pending at the date of an order under Section 6 of the Act 'shall be stayed.' It would thus seem clear that suits in respect of private debts, incurred before the passing of the order under Section 6 cannot be proceeded with and that they cannot result in a decree. If there is violation of the statutory prohibition against the trial of the suits, the resulting decree obviously cannot be regarded as valid decree which could be enforced by execution. We may add that the decree-holder does not claim to have obtained from the Court of the Special Judge any decree in respect of the maintenance allowance which formed the subject-matter of the decree under execution, and by operation of Section 13 of the Act the debt must be taken to be wiped off.

5. There is a third ground also for allowing the objections of Mt. Mahraj Kuar. The ground is based upon the principles enunciated in Punjab National Bank, Ltd. v. Vishwa Nath Khanna and Ors : AIR1941All363 , Ehatun Begam v. Saghir Hussain Khan : AIR1945All321 and Tirbhawan Datt and Ors. v. Raja Pahupat Pratap Singh A.I.R. (34) 1947 Oudh 201. The rule there laid down is that in a case in which there has been no determination as to the sum payable by the non-applicants, there can be no execution against the non-applicant debtors.

6. The second contention is equally futile. There was no duty cast on the judgment-debtor to bring to the notice of the Court; the fact that applications of some of the judgment-debtors were pending under the Encumbered Estates Act and that an order under Section 6 was passed therein. The rule invoked on behalf of the appellant is that when in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute the jurisdiction of the Court upon the ground that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit. In this connection our attention was invited to Ledgard and Anr. v. Bull 13 I.A. 134. In our opinion the principle referred to has no application to a case where there is a statutory prohibition against the trial of a suit.

7. There is no substance in this appeal. It fails and is accordingly dismissed with costs.


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