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Shatrughan Singh and ors. Vs. Kedar Nath Minor Through Mt. Lakshmi Kuer - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1944All126
AppellantShatrughan Singh and ors.
RespondentKedar Nath Minor Through Mt. Lakshmi Kuer
Excerpt:
.....must fail. before this decree could be satisfied jai singh died leaving three sons -shatrughan singh, udai bir singh and udai bhan singh. 9. we have now a second appeal by the sons of jai singh before us and the main question for consideration in this appeal is that if a judgment-debtor dies before the decree is fully satisfied, leaving a number of heirs who inherit his property whether in such a case each heir is entitled to individual protection or the heirs must be regarded as one unit representing the deceased judgment-debtor. 50. (1) where a judgment-debtor dies before thedecree has been fully satisfied thelegal repre- holder of the decree may apply tosentative. no doubt the language used in section 17 is wide, but it is a well known rule of construction that statutes are not..........leaving three sons - shatrughan singh, udai bir singh and udai bhan singh. after the death of jai singh execution was taken out of the aforesaid decree against his three sons and his legal representatives. during the pendency of this execution on applications made by the sons of jai singh the decree was amended on 17th august 1935 under the agriculturists relief act and later on 20th may 1941 under the u.p. debt redemption act. after the decree was thus amended it was put in execution again. the estate of jai singh which he left after his death paid a local rate which exceeded rs. 25 but the one-third share of each son of jai singh which he got by inheritance in his estate, was assessed to a local rate which was below rs. 25. by reason of this fact an objection was raised by the sons of.....
Judgment:

Iqbal Ahmad, C.J.

1. This is an execution second appeal by the judgment-debtors and arises in the following circumstances : The decree-holder respondent obtained a simple money decree against one Jai Singh on 22nd January 1932. Before the decree was put in execution, Jai Singh died leaving three sons Shatrughan, Udaibir Singh and Udaibhan Singh. The decree-holder executed the decree against the three sons and prayed for the attachment and sale of certain land. The sons objected to the execution of the decree by sale of their land on the ground that local rate payable by each of them did not exceed Rs. 25. This objection of the sons was based on the provisions of Section 17(1)(a), U.P. Debt Redemption Act (13 of 1940), which runs as follows:

Notwithstanding anything contained in Section 16 or in any other law for the time being in force, the land of an agriculturist, the local rate payable by...whom does not exceed Rs. 25 per annum shall not be sold...in execution of a decree to which this Act applies, nor shall a final decree for foreclosure be passed in respect of such land.

2. Both the Courts below overruled this contention of the sons and held that only such portion of the land of Jai Singh was protected from sale with respect to which a local rate of Rs. 25 was payable and the rest of the land was saleable. By the present appeal the sons assail this decision of the Courts below and they place reliance on a number of decisions of the Board of Revenue in support of their contention. The Board of Revenue has, in a series of cases, held that each individual judgment-debtor is by virtue of the provisions of Section 17 entitled to the protection afforded by Section 17 irrespective of the fact that that protection was not available to the original debtor or to the original judgment-debtor. In other words, the view that has found favour with the Board is that the question whether the protection afforded by Section 17 is or is not available to a particular agriculturist has to be decided not with reference to the date on which the loan was incurred or the decree was passed, but with reference to the date on which execution by sale of the land is sought. To this effect are the decisions of the Board of Revenue in Asa Ram v. Shafi Unnissa ('42) 1942 R.D. 464, Ram Devi Kunwar v. Tota Ram ('42) 1942 R.D. 956 and Syed Ghulam Mustafa v. Mt. Imam Bandi Bibi ('43) 1943 A.W.R. 123 (Rev.).

3. With all respect I am unable to adopt the view taken by the Board and the conclusion to which I have come is that the decision arrived at by the Courts below is correct and must be affirmed. In the determination of the question under consideration two matters must be kept in view. In the first place it is the land of 'an agriculturist' to which protection is afforded by Section 17 and, in the second place, the protection extends only in the ease of execution of decrees to which the Act applies. The decree to which the Act applies must, in view of the provisions of Section 2 (17), have been passed in a suit or proceeding relating to a loan. Loan is defined by the Act as meaning 'an advance in cash or kind...recoverable from an agriculturist...; 'The word 'agriculturist' is defined by Section 2 of the Act, as meaning 'a proprietor of a mahal or of a share in or portion of a mahal or a tenant.' It follows that Section 17 has reference to decrees passed with respect to an advance made to an agriculturist.

4. The question then arises whether the Legislature in using the words 'an agriculturist' in Section 17 had in contemplation (1) the agriculturist incurring the loan; or (2) the agriculturist against whom a decree with respect to a loan was passed; or (3) the agriculturist who, by transfer, succession, or otherwise, may have succeeded to the land of the original debtor and against whom the decree is sought to be executed. In the present ease i the question whether or not the words 'an agriculturist' in Section 17 refer to the original debtor does not arise and I, therefore, refrain from expressing an opinion on that point. I am, however, of the opinion that the aforesaid words have reference to the agriculturist against whom the decree was passed, and not to the legal representatives of such judgment-debtor against whom the decree is sought to be executed in pursuance of the provisions of Section 50, Civil P.C. In arriving at this conclusion I have not overlooked the fundamental rule governing the interpretation of statutes that, where the words of a statute are clear and unambiguous, it is the duty of the Courts of law to give those words their natural meaning even though such interpretation leads to apparent anomalies. Although Section 17 speaks of 'an agriculturist,' the Act is silent on the question as to whether these words have reference to the original judgment-debtor or to his legal representatives. The provisions of the Act throw no light on this matter and it is, therefore, in my judgment, open to the Courts to put such construction upon those words as would avoid anomalies and absurdities and give effect to the intention of the Legislature as disclosed by the enactment.

5. It would be well at this stage to briefly indicate some of the anomalies which would result if the contention of the appellants is accepted. Take a case where a decree with respect to a 'loan' is passed against an agriculturist on 1st January 1944. On the date of the decree the local rate payable by that agriculturist was Rupees 40 per annum. The decree-holder, in such a case, is entitled to execute his decree by sale of such land of the agriculturist-judgment-debtor as is in excess of the land the local rate with respect to which is Rs. 25 per annum. If the contention of the appellants is given effect to, the agriculturist judgment-debtor can nullify the right of the decree-holder just noticed by transferring his land to two of his relations on 2nd January 1944, as after the transfer, the local rate payable by each of the transferees will be only Rs. 20. Or take it that the original judgment-debtor dies on 2nd January 1944 and is succeeded by his two sons. Even in that case, according to the contention of the appellants, the decree-holder will be without any remedy. Again take a case where a decree for sale on the basis of a simple mortgage is passed against an agriculturist who pays Rs. 100 per annum as local rate. On the date of the decree the decree-holder consistently with the provisions of Section 17, will have the right to realise his decree by selling the land with respect to which RS. 75 per annum is payable on account of local rate. If the word 'agriculturist' in Section 17 is interpreted to mean not the original judgment-debtor but the person against whom the decree is actually sought to be executed, the original judgment-debtor can nullify the right of the decree-holder just noticed by transferring the equity of redemption to five of his relations the day after passing the decree, as after the transfer the local rate payable by each of the transferees will be only Rs. 20 per annum. I It would be manifest from the illustrations given above that if the word 'agriculturist' in Section 17 has reference not to the original judgment-debtor but to the person against whom a decree is actually executed, the rights of a decree-holder can be curtailed or nullified by unilateral fraudulent acts of the original judgment-debtor by events over which the decree-holder had no control. I cannot persuade myself to believe that the Legislature in enacting Section 17 could have intended to introduce uncertainties of such a description with respect to the execution of a decree passed on the basis of a loan. Apart from this, in the absence of clear language to that effect, I am not prepared to hold that, in enacting Section 17, the Legislature intended to nullify the provisions of Sections 50 and 58, Civil P.C. In making these observations I have not overlooked the words 'notwithstanding any other law for the time being in force' that find a place in Section 17. These words, in my judgment, mean no more than this that, even though there may be provisions in any other law for the sale of 'land' those provisions must yield to the provisions of Section 17 of the Act. Sections 50 and 53, Civil P.C., do not provide for the sale of land and therefore do not fall within the purview of the words quoted above.

6. All the anomalies noticed above will be avoided if the word 'agriculturist' in Section 17 is interpreted to mean the agriculturist against whom the decree is passed, and there is nothing in the wording of the enactment that militates against such an interpretation. For the reasons given above I hold that, for the purpose of determining the land that is protected from sale under Section 17, the local rate payable by the agriculturist against whom the decree was passed is to be taken into account and not the local rate that may be payable by his legal representatives, or transferees. In this view of the matter this appeal must fail. I would accordingly dismiss this appeal with costs.

Verma, J.

7. I have also come to the conclusion though not without some hesitation, that this appeal should be dismissed. The language of Section 17, U.P. Debt Redemption Act, lends considerable support to the view which the Board of the Revenue have consistently held in a number of cases. I am, however, greatly impressed by the argument that that view would lead to various absurdities and anomalies, would inevitably encourage fraud and trickery and would occasion grave injustice in many cases. This aspect of the matter has been dealt with by my Lord the Chief Justice and it is not necessary for me to say anything further. If the language of the statute had been wholly free from doubt, it would have been our duty to give effect to it. I agree with my Lord the Chief Justice that the language of the statute is not so clear as to justify the appellants' contention that the Court has no option but to accept the view pressed upon it on their behalf. That being so it is, in my opinion, the duty of the Court to place that construction upon the statute which would advance the cause of justice and would prevent fraud and dishonesty.

Dar, J.

8. This is an appeal against a judgment and decree dated 13th September 1942 of the Civil Judge of Mainpuri by which he affirmed a judgment and decree dated 9th August 1941 of the Munsif of Shikohabad in an execution case by which the protected property of an agriculturist under Section 17, U.P. Debt Redemption Act, 1940, was determined. On 22nd January 1932 a simple money decree was granted to Kedarnath, a resident of Mainpuri district against Jai Singh, another resident of the same district by the civil Court of Mainpuri. Before this decree could be satisfied Jai Singh died leaving three sons - Shatrughan Singh, Udai Bir Singh and Udai Bhan Singh. After the death of Jai Singh execution was taken out of the aforesaid decree against his three sons and his legal representatives. During the pendency of this execution on applications made by the sons of Jai Singh the decree was amended on 17th August 1935 under the Agriculturists Relief Act and later on 20th May 1941 under the U.P. Debt Redemption Act. After the decree was thus amended it was put in execution again. The estate of Jai Singh which he left after his death paid a local rate which exceeded Rs. 25 but the one-third share of each son of Jai Singh which he got by inheritance in his estate, was assessed to a local rate which was below Rs. 25. By reason of this fact an objection was raised by the sons of Jai Singh under Section 17, U.P. Debt Redemption Act, against the further execution of the decree. They alleged that each son of Jai Singh had become an agriculturist by reason of inheritance from Jai Singh and as each son received by inheritance a share which paid a local rate below Rs. 25 and as each son was entitled to individual protection the necessary result of it was that the decree had ceased to be executable. The execution Court found that the three sons of Jai Singh were not entitled to any individual protection but so much of the estate which was owned by Jai Singh should be excluded from sale, the local rate of which did not exceed Rs. 25 and this view was maintained in appeal by the lower appellate Court.

9. We have now a second appeal by the sons of Jai Singh before us and the main question for consideration in this appeal is that if a judgment-debtor dies before the decree is fully satisfied, leaving a number of heirs who inherit his property whether in such a case each heir is entitled to individual protection or the heirs must be regarded as one unit representing the deceased judgment-debtor. The solution of the question depends upon the correct interpretation of the provisions of Section 17(1)(a) and (b), U.P. Debt Redemption Act, 1940, and of Section 50, Civil P.C., which are as follows:

17. (1) Notwithstanding anything contained inProtection of cer- Section 16 or in any othertain land from sale law for the time being inor transfer. force(a) the land of the agriculturists, the local rate payable by whom or recoverable from whom does not exceed twenty-five rupees per annum shall not be sold or otherwise transferred in execution of a decree to which this Act applies, nor shall a final decree for the foreclosure be passed in respect of such land and

(b) in case of any other agriculturist (i) only so much of this land may be sold or otherwise transferred in execution of a decree to which this Act applies, or (ii) a final decree for foreclosure may be passed in respect of only so much of his land, as would after such sale or transfer or foreclosure leave with him land the local rate payable in respect of which would be at least rupees twenty-five per annum.

50. (1) Where a judgment-debtor dies before thedecree has been fully satisfied theLegal repre- holder of the decree may apply tosentative. the Court which passed it to exe-cute the same against the legal representative of the deceased.(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

10. The decree which is under execution was passed against Jai Singh, since deceased and he is the sole judgment-debtor under the said decree. After the death of Jai Singh the decree is being executed under Section 50, Civil P.C., against his legal representatives who happen to be his three sons and their liability is limited under the statute 'to the extent of the property of the deceased which has come to their hands and has not been duly disposed of.' The sons of Jai Singh are not the judgment-debtors under the decree and the decree is being executed against them not because they are judgment-debtors but under a special provision of Section 50, Civil P.C. It is not disputed that if Jai Singh had been alive on the date of the execution which has given rise to this appeal and if he had claimed protection under Section 17, U.P. Debt Redemption Act, the only protection which he could have got was under Clause (b) of Section 17 of the Act and after excluding property which paid local rate of less than Rs. 25 execution of the decree should have proceeded in regard to the rest of the property. But the contention of the sons of Jai Singh is that if Jai Singh died before he could claim protection or even when he died after claiming the protection and getting it, a new situation arises under Section 17, U.P. Debt Redemption Act, and after his death if it turns out that individual inheritance of his sons becomes liable to pay a local rate below Rs. 25 then these sons can claim a fresh protection order as a result of which the whole decree might become in executable. And for this contention reliance is placed upon the wide language of Section 17, Debt Redemption Act, and upon a series of decisions of the Board of Revenue in which it has been held that the protection given by Sections 17 and 19, Debt Redemption Act, is a personal one and if the applicants in proceedings under the Encumbered Estates Act are members of a joint Hindu family or co-widows or heirs of a Mahomedan debtor each applicant is entitled to individual protection in relation to decrees passed under the Encumbered Estates Act.

11. The protection given by Section 17, Debt Redemption Act, comes into existence when the land of an agriculturist is sought to be sold or otherwise transferred in execution of a decree to which the Act applies. As in execution of a decree the property of that person alone can be sold who was made liable under the decree and who is judgment-debtor under the decree and not of any stranger, it is implicit in the section and it must be understood and read as containing the words 'against him' after the clause 'in execution of a decree to which this Act applies.' The agriculturist therefore who can claim protection under Section 17 is the one who is a judgment-debtor under the decree and any person who is not a judgment-debtor under the decree cannot claim protection under Section 17, Debt Redemption Act. By a rule of law which finds expression in Section 50, Civil P.C., if a judgment-debtor dies before satisfaction of the decree execution of the decree continues against his legal representatives limited to the assets of the deceased. It is a legitimate contention that if any protection under Section 17 was available to the judgment-debtor at the time of his death, and he died before claiming or getting it the same should be available to his legal representatives. But his legal representatives cannot claim any personal protection under Section 17 which was not available to the deceased judgment-debtor because the decree under execution is not against them; and it is being executed against them not because they are its judgment-debtors but under special provision of Section 50, Civil P.C.

12. It is contended that Section 50, Civil P.C., has been abrogated by the opening clause of Section 17, U.P. Debt Redemption Act, which enacts that 'notwithstanding anything contained in Section 16 or in any other law for the time being' the land of an agriculturist shall not be sold or transferred in execution of a decree and the language used in Section 17 is wide enough to include sale of land when decree is executed against a legal representative. The law which is abrogated by the opening clause of Section 17 is the law directing the sale of the land of agriculturist. Section 50, Civil P.C., does not contain a law directing any sale, it only enacts a procedure to enforce the liability of a deceased judgment-debtor; No doubt the language used in Section 17 is wide, but it is a well known rule of construction that

statutes are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare' and 'to alter any clearly established principle of law a distinct and positive legislative enactment is necessary' : see Crais on Statute Law (Edn. 4) page 114.

Even if the section is capable of two interpretations, by one of which effect is given to a clearly established principle of law and by the other of which the law is unsettled the former should be accepted. It is clearly established principle of law that a decree can be executed after the death of a judgment-debtor against the assets of the deceased. The section therefore should not be so interpreted as to lead to the conclusion that a decree against a deceased judgment-debtor in some cases of agriculturist cannot be so executed.

13. In this view of the matter it is not necessary to, express an opinion on the larger question that where a decree exists in fact against the claimant who is not the original debtor whether protection in such a ease under Section 17 is to be accorded with reference to his local rate or with reference to local rate of original debtor. Nor is it necessary to express an opinion on correctness or otherwise of a series of decisions of the Board of Revenue in which decrees existed in fact against the claimants under the Encumbered Estates Act and protection was granted to individual claimants. I would dismiss the appeal with costs.

14. The appeal is dismissed, with costs.


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