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Benares Bank Ltd. Vs. Dwarka Nath and ors. - Court Judgment

LegalCrystal Citation
Subject Family;Civil
CourtAllahabad
Decided On
Reported inAIR1946All497
AppellantBenares Bank Ltd.
RespondentDwarka Nath and ors.
Excerpt:
.....to the well recognized principles of interpretation the exception does not affect the general rule. rule 7 clearly says that: for that has been clearly provided by rule 7. it is only an application which is necessary. we are clearly of opinion that that order was wrong and in contravention of section 230 of the code. 23. it must, however, be clearly under-stood that the analogy of the authorities on ft similar expression -application for execution -should not be pursued too far. 26. the preliminary measures in the case before us are the measures contemplated by section 39 and order 21, rules 5, 6, 10 and 11. it is true that no application within the meaning of order 21, rule 10, was made to the transferee court, but the application in the present case, made to the court transferring..........ramji bhagwanji | __________________________________________ | | | | badri kedar baijnath dwarkanath nath nath alias alias bachcha kalapnath2. the learned additional civil judge has described dwarka nath alias bachcha. the learned counsel for the parties are agreed that this is a mistake and that bachcha is the alias of kedar nath. it is common ground that the members of the above family are still joint. on 25th january 1912, makund lal, durga prasad, bhagwanji, ramji and gorakh nath for self and as guardian of his minor sons, badri nath and bachcha, executed a hypothecation bond, in the nature of a security bond, to secure the payment of loana up to a maximum of rs. 30,000, in favour of the benares bank ltd., benares. these loans were accordingly taken from time to time. on 28th.....
Judgment:

Sinha, J.

1. This is an appeal by an unsuccessful decree-holder against whom an application by one of the judgment-debtors, under Section 8, U.P. Debt Redemption Act, (Local Act 13 [XIII] of 1940), for amendment of decree No. 22 of 1922, passed on 11th January 1924, by the Subordinate Judge of Benares, under Order 34, Rule 5, Civil P.C., was granted. The facts are briefly these : The following pedigree will be useful:

GOBIND PRASAD

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_______________________________________

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Durga Prasad Makund Lal

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_____________________________________

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Gorakh Nath Ramji Bhagwanji

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__________________________________________

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Badri Kedar Baijnath Dwarkanath

Nath Nath alias

alias Bachcha Kalapnath

2. The learned Additional Civil Judge has described Dwarka Nath alias Bachcha. The learned Counsel for the parties are agreed that this is a mistake and that Bachcha is the alias of Kedar Nath. It is common ground that the members of the above family are still joint. On 25th January 1912, Makund Lal, Durga Prasad, Bhagwanji, Ramji and Gorakh Nath for self and as guardian of his minor sons, Badri Nath and Bachcha, executed a hypothecation bond, in the nature of a security bond, to secure the payment of loana up to a maximum of Rs. 30,000, in favour of the Benares Bank Ltd., Benares. These loans were accordingly taken from time to time. On 28th October 1915, a promissory note was executed by Makund Lal for a sum of Rs. 17,347-4-0. On 28th October 1918, Gorakh Nath, Ramji and Bhagwanji executed a promissory note for Rs. 21,500 and on 23rd July 1920 the Bank filed a suit for the recovery of Rs. 21,500, together with interest at nine per cant, per annum against Gorakh Nath and his two brothers and four sons, of whom Kedar Nath, Baij Nath and Dwarka Nath were minors and who were cited as defendants under the guardianship of their father, Gorakh Nath. This was Suit No. 22 of 1922. The preliminary decree under Order 34, Rule 4, Civil P.C., was passed on 12th July 1923, and the final decree for sale under Order 34, Rule 5, followed on 11th January 1924. During the pendency of the execution proceedings Gorakh Nath died and his name was removed. The application, which has given rise to the present appeal, for the relief mentioned above, was made by Dwarka Nath. He claimed the benefit of the U.P. Debt Redemption Act, Local Act 13 [XIII] of 1940, as also of the Agriculturists' Relief Act, Local Act 27 [XXVII] of 1934. It was contended that the judgment-debtors were both agriculturists under the above Acts and workmen under the Act of 1940.

3. The Benares Bank Ltd., which has since gone into liquidation, was cited as a defendant, along with the other members of the family, but it alone entered defence. Various pleas were raised, but those which have been reiterated before us are only these. It is contended that the judgment-debtors were not agriculturists on the date of the loan or even on the date of the application; they certainly neither were nor are workmen. And, lastly, it was pleaded that they are not entitled to the benefits of the U.P. Debt Redemption Act, inasmuch as the Bank had, in the course of the present execution proceedings, made the declaration contemplated by Sub-section (3) of Section 4 of the Act that the

decree shall not be executed against the land, agricultural produce or person of such agriculturist.

4. The learned Additional Civil Judge, in a careful judgment, held that the judgment-debtors were not workmen; nor were they agriculturists at the time of the loan, but they were agriculturists at the time of the presentation of the application and were thus entitled to the benefits of the Act. He held that the declaration given was not an effective declaration, as the decree-holder had, on 27th February 1925, 'already applied for execution against the land...of such agriculturist.

5. He allowed the application of Dwarka Nath, the applicant and directed him to

file an account under the provisions of Sections 9 and 10 of Act 13 [XIII] of 1940 till 2nd August 1943, whereafter the decree-holder shall have the usual ten days for filing objections, if any, against that account. The final decree under Order 34, Rule 5, Civil P.C. passed in this case will then be amended.

6. The Bank has come before us in appeal. The finding of the learned Additional Civil Judge that the judgment-debtors were not workmen has not been challenged on their behalf. The learned Counsel for the Bank contended that, as the judgment-debtors were not agriculturists on the date, of the loan, they are not entitled to the benefits of the Act. This contention must, in view of the decision of this Court in Mt. Ketki Kunwar v. Ram Saroop ('42) 29 A.I.R. 1942 All. 390 be rejected. It was held in this case that

Where the advance is recoverable only from the property of an agriculturist or workman, it is not necessary that the advance should have been also made to a workman or to an agriculturist.

7. It is not pretended that Dawarka Nath, the applicant, is personally liable for the loan. The Full Bench case was explained in a very recent case Shil Gange v. Manohar Lal : AIR1945All346 . The learned Counsel for the appellant has, however, strenuously contended that the declaration is an effective declaration and constitutes a bar to the present application. Section 4, U.P. Debt Redemption Act, while prescribing a course which will enable the decree-holder to circumvent the effect of the Act by making a declaration not to proceed with 'the land, agricultural pro. duce or person of such agriculturists,' has imposed certain restrictions. In the case of a suit pending at the commencement of this Act, the declaration can be made at any time before the decision of the suit. In the case of a suit instituted after the commencement of this Act, it must be made in the plaint itself. This is prodded by Clause (2) of Section 4. But if a decree had been passed before the commencement of this Act, the Legislature is, not unnaturally, not so stringent, but it nevertheless deprives the creditor of this benefit if he 'has already applied for execution against the land...of such agriculturist.' This was held in Mohd. Abdul Razzak v. Mt. Parvati Devi ('42) 29 A.I.R. 1942 All. 394 and emphasised in Shaila Pati v. Sahu Mahadeo Prasad : AIR1945All215 .

8. The real question, therefore, is whether the Bank has already applied for execution against the land and thereby forfeited the special concession allowed to it by Section 4. Before proceeding further it must be borne in mind that the property hypothecated consisted of house property in Benares and zamindari in the district of Mirzapur. The suit was instituted in the Court of the Subordinate Judge at Benares. The first application for execution was made on 20th February 1924, and the second on 27th February 1925. The prayer in the first application was couched in these terms:

The petitioner has out of the items of property mentioned in the final decree, exempted, by means pf an application, dated 23rd November 1922, grove No. 65, situate in Mohalla Durga Kund, in the city of Benares. The four anna share of zamindary in pargana Ahrora, in the district of Mirzapur, lies outside the jurisdiction of this Court. The petitioner, therefore, wishes to have the proclamation of sale issued in respect of the property in the city of Benares. It, therefore, prays that the property mentioned above may be put to sale and such part of the decretal amount, as can be realised from this property, may be realised. Thereafter a certificate for the sale of Mahuli Bazar Ganj be sent to the Court of the Subordinate Judge of Mirzapur.

9. This application, be it noted, was made in the usual form prescribed by Order 21, Rule 11, Civil P.C. It is this application which is decisive of the fate of this case, and it is the effect of this that falls to be considered. Before, however, addressing our. selves to the character of this application, it is desirable to say a few words about the declaration contemplated by Section 4. The Agriculturists Relief Act, was passed 'to make provision for the relief of agriculturists from indebtedness.' We have the high authority of their Lordships of the Judicial Committee that its 'words' being the word of 'a remedial statute'

must be construed so far as they reason ably admit so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved. Raghuraj Singh v. Hari Kishen Das .

10. The U.P. Debt Redemption Act of 1940 which followed in its wake and which definitely aimed at implementing its purpose by providing 'for further relief from indebted ness to agriculturists and workmen in the United Provinces' must receive an equally liberal, if not a more liberal, interpretation Section 4 is, in a sense, an exception to the Act itself in that it recognises the right c the decree-holder to take away, at least in some measure, from the judgment-debtor the benefit vouchsafed to him by the rest of the Act, though within definite limitations. The Legislature itself has said that Section 4 deals with 'cases in which provisions of the Act shall not apply'. The nature of such clause or section has been defined in Churchill v. Crease (1828) 5 Bing. 177. Craies in his Statute Law (Edn. 4) at page 200 has put it in this way:

So in Churchill v. Crease (1828) 5 Bing. 177 the question was whether a payment made by a bankrupt before the issuing of the commission against him was protected by 6 Geo. IV, c. 16, Section 82, which enacted that 'all payments really and bona fide made, or which hereafter shall be made, to any creditor, by a bankrupt, before the issuing of the commission against him, shall be deemed valid. It was argued that, as by Section 136, the Act was not to come into force until the September then next, and the payment in question was made before the September, the Act would not apply to that payment so as to protect it. The Court, however, held that the payment was protected. 'I should have thought,' said Best C.J., 'that Section 136 was conclusive if there had been no conflicting intention to be collected from the Act, but the rule is that where a general intention is expressed (as here, that the Act should not come into force until September), and the Act expresses also a particular intention incompatible with the general intention (as here, that all payments bona fide made, i.e., heretofore made, shall be protected), the particular intention is to be considered in the nature of an exception.

11. If it is an exception it must be construed strictly. In Gaya Prasad v. Kalap Nath ('29) 16 A.I.R. 1929 Oudh 389 at p. 392, Wazir Hasan Ag. C.J., observes as follows:

The provision in the same section that there shall be no third appeal to the Chief Court from a decree passed by a District Judge as a Court of second appeal is stated in the form of an exception and therefore according to the well recognized principles of interpretation the exception does not affect the general rule. It must be confined within its own limits and strictly to the Subject-matter embraced within it.

12. To the same effect is the observation of Din Mohammad J. in Madho Singh v. James R.R. Skinner ('42) 29 A.I.R. 1942 Lah. 243 at p. 248:

One fundamental principle that governs the interpretation of statutes is that an exception must be construed strictly.

13. In order to understand the effect of a prayer for certificate under Order 21, Rule 6, the scheme of the Code of Civil Procedure must be kept in view. Section 39 deals with the transfer of decrees; Order 21 with their execution. We are not concerned in this case with Rules 1 to 5. Rule 6 provides the procedure where the Court desires that its own decree shall be executed by another Court and insists upon compliance with certain requirements, by the Court sending a decree for execution. Rule 7 clearly says that:

The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded in the hand of the Judge, requires such proof.

14. We now come to Rule 10, which says:

Where the holder of a decree desires to execute it, he shall apply to the Court, which passed the decree.

15. It is, however, clear that no further proof of the decree or order for execution is necessary; for that has been clearly provided by Rule 7. It is only an application which is necessary. Rule 11, Sub-clause (2), which is the material clause, gives the details of the particulars which an application under E. 10 should contain. The insistence by the Legislature on these particulars in an application for execution is with a definite purpose. No process in execution is possible unless the details required by Sub-clause (2) of Rule 11 are there. The present, however, is not a case where the application for a certificate was made by the Bank not in the prescribed form, or without the particulars mentioned in Sub-clause (2) of Rule 11. Can it be said that the application of the Bank was not an application in execution, even though it was in the prescribed form and contained all the particulars required by Rule 11 Can it not be said that application was a composite application with a two-fold prayer the immediate prayer for a certificate and the ultimate prayer for execution

16. The expression 'applied for execution', as used in Section 4, has not been the subject of any judicial decision so far; at least none has been brought to our notice, and we are left to borrow light from the authorities which have construed the expression 'application for execution' as used in the Limitation Act. The earliest case of this Court is Ram Sahai v. Nanni ('86) 1886 A.W.N. 137. The facts briefly were these:

One Bam Sahai obtained a decree on 26th June 1873, and made an application for execution on 10th March 1884, praying that the decree be sent for execution to the District Judge of Aligarh with a certificate of non-satisfaction. This application was granted on 18th July 1884, and the decree and certificate under Section 224 of the Code of 1882 - now Order 21, Rule 6 - were given to him and were filed by him in the Court of the Judge at Aligarh on 16th November 1883. The Judge, acting under the provisions of Section 226 - now Order 21, Rule 8 - directed the decree to be forwarded for execution to the Court of the Subordinate Judge. Ram Sahai then filed an application for execution on 27th November 1885, asking the Subordinate Judge to grant execution of the decree. It was pleaded on behalf of the judgment-debtor that the application was barred by limitation, as 12 years had elapsed since the date of the decree and Section 230 - present Section 48 - Civil P.C., stood in the way.

17. Oldfield J., with whom Tyrrell J., concurred, observed as follows:

The application of 27th November 1885 is not a fresh application for execution, but only one asking the Court to give effect to that of 10th March 1884, still pending. It is nothing more than asking the Courts to give directions in accordance with the order of 10th March 1884, and there can be no question as to the application being barred.

18. The next case of this Court is Sundar Singh v. Doru Shankar ('98) 20 All. 78

Doru Shankar obtained a decree for money on 2nd July 1884. On 12th April 1896, he applied for a certificate under Section 224 - now Order 21, Rule 6 - Civil P.C., which was prepared on 2nd July 1896, and was received by the Court to which the decree was sent for execution on 4th July 1896. He applied to that Court for execution on 7th July 1896. An application for execution was made to the Court to which the decree had been transmitted on 7th July 1896. The bar of limitation was pleaded. The Courts below had held that the application was not barred by limitation.

19. Edge C.J., and Banerji J., disagreed with this view and held:

Execution was in fact barred by that time by reason of Section 230, Civil P.C. However, the Court held that Section 230 could not be applied, as the application to transmit the decree had been made within time. As a matter of fact the Court was wrong. The making of an application to transmit the decree and the making of an order thereon did not suspend the operation of Section 230. The Court made an order for execution. We are clearly of opinion that that order was wrong and in contravention of Section 230 of the Code.

20. It is unfortunate that the attention of the learned Chief Justice and Banerji J., was not invited to the earlier case decided by Oldfield and Tyrrell JJ. We now come to the other case Khetpal v. Tikam Singh ('12) 34 All. 396. Karamat Husain and Tudball JJ. agreed with Sir John Edge and Banerji J. and disagreed with Oldfield and Tyrrell JJ. They held:

An application for execution can in no sense of the words be regarded as an application in continuation of an application for transfer of a decree from one Court to another.

21. The next case relied upon is Sahodra v. Bhagwan Das : AIR1926All473 , in which Kanhaiya Lal and Ashworth JJ. held that:

An application under Section 39, Civil P.C. for transfer of the execution of the decree is not an application for execution within the meaning of Order 21, Rule 10, Civil P.C., but an application to take a step-in-aid of execution governed by Article 181, Schedule I, Limitation Act.

22. The present case, however, is more akin to the case before Oldfield and Tyrrell, JJ., than the subsequent cases. In that case there was a two-fold prayer - a prayer for execution and also for a certificate. In the later cases the prayer was confined only to a prayer for a certificate. The learned Counsel for the appellant has relied upon Chutterput Singh v. Sait Sumari Mal ('16) 3 A.I.R. 1916 Cal. 488 and Banku Behary v. Naraindas Dat in support of his contention that the granting of a certificate is a purely ministerial act. They were ministerial acts in those particular cases, because, as brought out in Sreenath v. Priyanath : AIR1931Cal312 :.The two decisions on which reliance has been placed relate to decree passed on the original side of the Court, which under the practice obtaining there are transferred for execution under ministerial orders.

23. It must, however, be clearly under-stood that the analogy of the authorities on ft Similar expression - application for execution - should not be pursued too far. It is after all a reasoning by analogy. The purposes of the two Acts should not be lost sight of. The Limitation Act is a statute of repose or a statute of peace. The Act in question is on the other hand, an Act of a wholly different character. It is an Act several provisions of which - e.g., Section 7 or Section 8 - do not recognise even the sanctity of contracts and decrees, if they are inconsistent with it. To use, again, the words of their Lordships of the Privy Council, they were passed with a definite object of relieving a certain class of people. The policy of the Act is that the agriculturist should be assured a quiet enjoyment of his land. While he has lost everything else, land which, in the generality of cases is the principal, if not the only, means of livelihood should be saved out of the wreckage of his fortune.

24. The expression used in proviso 3 to Clause (3) of Section 4 does not say that the declaration becomes ineffective if there has been a previous execution. On the other hand, all that it insists upon is that the creditor should have 'already applied for execution.' In other words, whether the application has fructified or has remained infructuous, is immaterial. If something has been done to threaten the quiet enjoyment of the land by the agriculturists, the declaration cannot be made. When the Bank said that:

It, therefore, prays that the property mentioned above to wit, the house property in Benares may be put to sale...Thereafter a certificate for the sale of Mahuli Bazar Ganj be sent to the Court of the Subordinate Judge of Mirzapur.

it is obvious that it did something to threaten what the Legislature is anxious to preserve to the agriculturist. Execution has not been defined either in the Limitation Act or in the Code of Civil Procedure. There is, however, some attempt to define it in Sreenath Roy v. Radhanath Mookerjee ('83) 9 Cal. 773 at p. 776:

'Execution of decrees'...mean the enforcement of the decrees of the Courts, by what is generally known as 'process of execution'.

25. Order 21, Rule 24, lays down the process for execution. It says that process can issue only:

When the preliminary measures (if any) required by the foregoing rules have been taken.

26. The preliminary measures in the case before us are the measures contemplated by Section 39 and Order 21, Rules 5, 6, 10 and 11. It is true that no application within the meaning of Order 21, Rule 10, was made to the transferee Court, but the application in the present case, made to the Court transferring the decree contained a three-fold prayer, a prayer for the sale of the Benares property and, in case the decree remained unsatisfied either in whole or in part, a certificate and an order for sale of the Mirzapur property. This is the only interpretation which can be put upon the application. If that document is capable of two interpretations, one in favour of the decree-holder and the other in favour of the agriculturist, we must on the authorities discussed above, accept the interpretation which favours the agriculturist. We are, however, not left in doubt when we also bear in mind the aspect emphasised above that the application complied with, the requisites of Order 21, Rule 11. If this is so, no further application before the transferee Court was necessary, vide Sreenath v. Priyanath : AIR1931Cal312 . The point in question was considered in K.B. Dutt v. Taraprasanna Roy ('24) 11 A.I.R. 1924 Pat. 120. Mullick J. with whom Poster J. agreed, held at p. 754:

Order 21, Rule 6, read with Section 39, Civil P.C., makes it quite clear that where there has been no application for the execution of the decree in the Court which passed the decree, the decree-holder is bound to make an application for execution in the Court to which the decree has been transferred, but I can find nothing in the law, which compels the decree-holder to make a second application for the execution of the decree in the Court to which the decree has been transferred if he has already made an application in the Court which passed the decree.

27. This case was followed in Sreenath v. Priyanath : AIR1931Cal312 and Amarendra Nath v. Balai Chand : AIR1936Cal267 . In the case of Sreenath, Mitter J., with whom Mukerjee J. agreed, observed at p. 818:

If an application for execution is made to the Court which passed the decree that Court will transmit the same to the Court where immovable property sought to be sold is situate along with the other papers required by Order 21, Rules 5 and 6 of the Code and then the latter Court will make the order for sale and it will not be necessary in such a case to have a fresh application for execution before the Court where immovable property sought to be sold in execution is situate.

28. In Amarendra Nath v. Balai Chand : AIR1936Cal267 . Edgley J., with whom Ghose J. agreed, followed the above dictum. We, therefore, think that the application of the Bank having contained a prayer for a certificate as also a prayer for execution against the land in Mirzapur, no further application before the Court of Mirzapur was necessary and the application in question must for the purposes of the U.P. Debt Redemption Act be treated as an application for execution. This being so, the declaration made by the decree-holder, after such an application, was not an effective declaration and will not deprive the judgment debtor of the benefits of the U.P. Debt Redemption Act. We are satisfied that the judgment under appeal is right. We dismiss this appeal with costs.


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