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The Allahabad Bank Ltd. Vs. Rana Sheo Ambar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 17 of 1964
Judge
Reported inAIR1976All447
ActsLimitation Act, 1908; Limitation Act, 1963 - Sections 30 - Schedule - Article 137; Uttar Pradesh Zamindars Debt Reduction Act, 1953 - Sections 4, 4(2) and 4(3); Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 4, 6, 6(1) and 9; Code of Civil Procedure (CPC) , 1908 - Sections 11, 52, 94 and 151 - Order 34, Rule 6 - Order 38, Rule 5
AppellantThe Allahabad Bank Ltd.
RespondentRana Sheo Ambar Singh and ors.
Appellant AdvocateSheo Gopal, Adv.
Respondent AdvocateS.C. Mathur, Adv.
Excerpt:
(i) civil - debt reduction - section 4(2) of u.p. zamindars debt reduction act, 1953 and article 137 of limitation act, 1963 - held, no period of limitation prescribed by the new limitation act for an application to reduce the decretal debt. (ii) period of limitation - section 30(b) of limitation act, 1908 - when period of limitation not prescribed for an application - then it is for unlimited period - but if limitation act, 1963 prescribe a period for such application - held, required to be made within a period of ninety days - next after commencement of the limitation act, 1963. (iii) mortgaged property - section 4 (2) and (3) of u.p. zamindars debt reduction act, 1953 - application to reduce debt after passing of the decree by the decree holder or judgment debtor - court to be guided.....t.s. misra, j.1. i have had the advantage of reading the judgment prepared by my learned brother prem prakash, i agree with the conclusions reached by him but i would like to add something on the question of interlocutory injunction.2. the grant of an interlocutory injunction is a remedy which is both temporary and discretionary. when an application for interlocutory injunction is made upon contested facts the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it or both is uncertain end will remain uncertain until final judgment is given in the action. it is with a view to mitigate the risk of injunction to the plaintiff during the period before that uncertainty could be resolved that a.....
Judgment:

T.S. Misra, J.

1. I have had the advantage of reading the judgment prepared by my learned brother Prem Prakash, I agree with the conclusions reached by him but I would like to add something on the question of interlocutory injunction.

2. The grant of an interlocutory injunction is a remedy which is both temporary and discretionary. When an application for interlocutory injunction is made upon contested facts the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it or both is uncertain end will remain uncertain until final judgment is given in the action. It is with a view to mitigate the risk of injunction to the plaintiff during the period before that uncertainty could be resolved that a practice has arisen to grant him relief by way of temporary injunction. The object seems to be to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated. The Court must weigh one need against another and determine where the 'balance of convenience lies'.

3. It is however to be remembered that the purpose sought to be achieved by giving to the court discretion to grant interlocutory injunction would be frustrated if the discretion were clogged by a technical rule forbidding its exercise it the Court evaluated the chances of the plaintiff's ultimate success at the trial at 50 per cent or less but permitting its exercise if his chances were of more than 50%. No such mathematical formula can be evolved for this purpose. The discretion has to be exercised not arbitrarily and capriciously but judiciously and fairly on reasonable grounds depending upon the facts and circumstances of the case and the evidence available to the Court at the hearing of the application. The plaintiff should show 'a probability that he is entitled to relief (Preston v. Luck, (1884) 27 Ch D 497) or, to put it differently 'strong prima facie case that the right which he seeks to protect in fact exists' (Smith v. Grigg Ltd., (1924) 1 KB 655). A less onerous criterion was indicated in Junes v. Pacaya Rubber and Produce Co. Ltd., (1911) 1 KB 455 requiring the plaintiff to show that there is 'certainly a case to be tried'. In my view, the court must be satisfied before granting interlocutory injunction that the claim is not frivolous or vexatious but is well founded. The applicant must show that there is a serious question to be tried and there are fair chances of its being decided in his favour. Of course, at this stage of the litigation the court need not adjudicate upon the facts on which the claims of either party may ultimately depend nor decide difficult questions of law which need detailed arguments and mature consideration because they are matters to be dealt with at the trial. The court has to abstain at this stage of the case from expressing any opinion upon the merits of the case because that can be done only after the final hearing.

4. If in a suit for permanent injunction the court finds that the material available at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding at the final trial, it should proceed to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief.

5. In this connetcion the court should consider whether, if the plaintiff were to succeed at the trial in establishing his right to permanent injunction, he would be adequately compensated by an award of damages. If the damages would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, interlocutory injunction may be granted. The question of balance of convenience would arise where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both. If the factors are evenly balanced the rule of prudence would demand preservation of the status quo. The Court would, however, not embark upon anything resembling a trial of action upon conflicting affidavit in order to evaluate the strength of either party's case. It would be unwise to attempt here to list all the various matters which may need to be taken into consideration in deciding the application for interlocutory injunction. These would vary from case to case. In addition to these criteria there may be many other special factors to be taken into consideration in the particular circumstances of individual cases. As laid down by the Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal : AIR1962SC527 the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by Order 39 of the Code of Civil Procedure if the Court is of opinion that the interests of justice require the issue of such interim injunction. However, by an interlocutory order the court will not stay the operation of an impugned order which had already been given effect to and had exhausted itself.

6. Judged in the light of these principles, I am of the view that interlocutory injunction should be issued in the instant case. The facts and circumstances warranting such an injunction have been set forth in detail by brother Prem Prakash J., in the judgment and it is not necessary to repeat the same.

Prem Prakash, J.

7. The Rule in revision to assail an order of the Civil Judge, Rae Bareli, made under Section 4 (2) of the U. P. Zamindars' Debt Reduction Act, 1952 (to be hereinafter referred to as the Act) and the First Appeals from the First Orders rejecting various applications made by the Allahabad Bank under Order 38, Rule 5 read with Sec. 151 of the Code of Civil Procedure have arisen, in the course of the execution of the decree under Order 34, Rule 5 of the Code of Civil Procedure, obtained by the Bank against Raja Uma Nath Bux Singh, the predecessor-in-interest of the judgment-debtors, on 16th July, 1926, in the result of a preliminary decree under Order 34, Rule 4 of the Code passed on 3lst January, 1925, for a sum of Rs. 4,80,000 on the basis of a simple mortgage executed by Uma Nath Bux Singh on 13th July, 1914 in favour of the Bank hypothecating proprietary interest in the 67 villages comprising the erstwhile Taluqa of Khajoorgaon.

8. The first application for execution was filed by the Bank on 23rd September, 1926; the parties entered into a compromise on 15th March, 1928 whereby the decree was made payable in certain instalments and the rate of future interest was enhanced. The instalments were not paid end on 20th April, 1931, the decree-holder Bank filed a second application for execution, On 4th February, 1932 execution proceedings were transferred to the revenue court and on 19th April, 1932, a second compromise was arrived at between the parties. Fresh instalments were allowed to the judgment-debtors, but since they were again not paid, the third application for execution was made on 14th September, 1933. The execution proceedings were again transferred to the Collector on 8th January, 1934.

The U. P. Agriculturists Relief Act, 1934, came into force soon after and the judgment-debtor applied for amendment of the decree under that Act. On 19th October, 1936, an order was passed under the said Act permitting payment of the decretal amount in six monthly instalments of Rs. 20,000 each and the rate of interest was also reduced. Information of the amendment of the decree was sent to the revenue court and the revenue court returned the papers to the civil court on 12th January, 1937. On 16th January, 1937, the civil court consigned the papers to the record room and upon an application filed by the judgment-debtor an order was passed on 29th April, 1938, granting three years' time to the judgment-debtor for the payment of the decretal amount. The amount, as usual, was not paid and the fourth application for execution was filed on 25th May, 1940. The judgment-debtor filed objections to the execution and one of the objections was that the last application for execution was made more than twelve years after the date of the decree and was, therefore, barred by time. The executing court dismissed the objection and in appeal the Chief Court of Oudh held that the execution application was within limitation as the limitation would commence to run from the date of the amendment of the decree. The decision of the Oudh Chief Court that the application for execution filed on 25th May, 1940, was within limitation thus became final between the parties.

Proceedings continued for a number of years till 1st July, 1952, when the U. P. Zamindari Abolition and Land Reforms Act came into force. As & consequence of this enactment the zamindari rights of the judgment-debtor were abolished and it was no longer possible to sell the zamindari rights in the 67 villages which had been ordered to be sold. It may be stated here that Rana Uma Nath Bux Singh had executed a registered will on 3rd February, 1946; he died on 27th July, 1946. After his death differences arose between his heirs. Under the will Rana Sheo Ambar Singh, his eldest son, got the Taluqa by a destbardari he gave 21 villages to Rai Bahadur Sheo Pratap Singh and also the kothi in Rae Bareli. In view of the altered situation by the U. P. Zamindari Abolition and Land Reforms Act, an application was made by the Bank for the amendment of the execution application (Execution Case No. 18 of 1940) together with an application under Section 70 of the said Act. Rana Sheo Ambar Singh filed objections to the application for amendment. The execution court heard the objections and dismissed them by the order dated 15th April, 1953. It held that the houses, trees and wells situate in the abadi could be sold in execution of the decree and the decree-holder was further entitled to compensation bonds granted by the Government to the appellant in view of his Zamindari rights as substituted security. It also held that the bhumidhari rights acquired by the judgment-debtors under Section 18 of the U. P. Zamindari Abolition and Land Reforms Act could be sold in execution of the decree. In appeal preferred by Rana Sheo Ambar Singh the High Court took a similar view, but the Supreme Court by their judgment dated 27th April, 1961, declared that bhumidhari land was not saleable in execution of the mortgage decree.

9. While the appeal was pending in the Supreme Court, the Bank made application under Order 38, Rule 5 of the Code of Civil Procedure for attachment of 1/4th compensation of 90 villages (not mortgaged with the Bank) under attachment in execution of the decree of Babu Vaidya Nath Singh against the judgment-debtors; another application for attachment of full compensation of 33 villages not mortgaged with the Bank was made on 17th December, 1955. Rai Bahadur Sheo Pratap Singh died on 22nd January, 1956 and his heirs were substituted in Misc. Case No. 31 of 1956. The Bank applied on 2nd April, 1957 for attachment of the Kothi of Rai Bahadur Sheo Pratap Singh as also for attachment of the kothi belonging to Rana Sheo Ambar Singh in the occupation of the District Judge, Rae Bareli. In the alternative invoking the aid of Section 151 C. P. C., interim injunction was also sought to restrain the judgment-debtors from disposing of or withdrawing the same. Ex parte ad interim injunction was issued with respect to the compensation payable to the judgment-debtors ex parte orders making attachment of the property were also issued. Likewise, the Bank applied for attachment of Rs. 25,000 payable to the Rana by way of refund of security deposit in the Supreme Court appeal and the court issued an interim order.

10. After the decision of the Supreme Court the Bank filed an application for attachment of trees standing upon intermediary's groves. The Rana filed objections, but they were dismissed on 12th May, 1962. The Rana went in appeal to the High Court which was dismissed on 2nd February, 1966. Thereafter, he filed an appeal to the Supreme Court which is pending there for decision. On 16th March, 1963. The Bank filed another application for attachment of compensation payable to the judgment-debtors for the surplus area which may be determined under the U. P. Imposition of Ceiling on Land Holdings Act. This application and other applications made under Order 38, Rule 5 were dismissed by the Civil Judge, Rae Bareli by his order dated 6th March, 1964 giving rise to the First Appeals.

11. On 3rd June, 1965, Rena Sheo Ambar Singh claiming sole ownership of 67 villages filed an application for reduction of the decretal amount under Section 4 of the Act stating therein that the cause of action for making the application arose on 2nd June, 1965 when the Allahabad High Court in Smt. Brij Rajkumari v. Raja Mohammad Mustafa Ali Khan : AIR1968All322 declared Sub-clause (vi) of Clause (f) of Section 2 of the Act as invalid being in conflict with Article 14 of the Constitution. The Bank contested the application upon a variety of grounds, but the Civil Judge reduced the decretal debt under Section 4 (2) of the Act specifying the reduced amount due from Rana Sheo Ambar Singh and the heirs of Sheo Pratap Singh. Against that order the Bank has come in revision to this Court, reiterating the grounds to which we shall turn at the appropriate stage. At the outset, and before we advert to the arguments canvassed by the counsel in that behalf, it would be useful to have a look at the Act which was enacted as a consequence of the U. P. Zamindari Abolition and Land Reforms Act. The object of the Act, as its preamble indicates, is 'to provide for scaling down debts of zamindars whose estates have been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950.'

The Act consists of eleven sections. Section 3 of the Act invests the court with the power to reduce the debts at the time of passing the decree. Section 4 empowers the court to reduce the debts after passing the decree. Sub-section (2) provides that where the mortgaged property consists exclusively of an 'estate' and such 'estate' has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, the court shall, if there is only one judgment-debtor entitled as owner to the estate, calculate the amount due on the first day of July, 1952, and then reduce it in accordance with the formula given in the Schedule B. If there are two or more judgment-debtors and all or more than one out of them were on the thirtieth day of June, 1952, entitled as owners to the mortgaged estate (i) calculate the amount due on the first day of July, 1952, and after apportioning the amount between the judgment-debtors reduce the amount in case of each of the judgment-debtors in accordance with the formula given in Schedule 1. Sub-section (3) makes a provision where the mortgaged property consists partly of estate and partly of property other than estate, and prescribes the manner in which the amount has to be determined as on 1st July, 1952 and distributed on the two properties separately in accordance with the principles in Section 82 of the Transfer of Property Act; it also lays down the manner in which the liability between the various judgment-debtors has to be apportioned and the amount reduced in accordance with the formula given in Schedule 1.

It would thus appear that an application under Section 4 of the Act to reduce debt after the passing of the decree can be made by the decree-holder or by the judgment-debtor, but different considerations will guide the court to which the application is made where the mortgaged property consists exclusively of the estate and such estate has been acquired and where the mortgaged property consists partly of an estate and partly of property other than an estate in reducing the decretal debt. Section 7 provides that after the amount due has been reduced the decree shall to the extent of the reduction so effected be deemed for all purposes and on all occasions to have been duly satisfied. Section 8 provides that notwithstanding anything contained in any agreement, document or law for the time being in force, a decree relating to a secured debt shall, in so far as the compensation for the mortgaged estate is concerned, be executed to the extent of 3/4th amount only against the compensation and rehabilitation grant payable to such mortgagor in respect of his estate. Section 11 confers powers upon the State Government to make rules for the purpose of carrying into effect the provisions of the Act. We may note that the Act does not prescribe any period of limitation for making an application under Section 4 and this has enabled the Bank to contend on the basis of the provision contained in Clause (b) of Section 30 of the Limitation Act, 1963 which came into force on 1st January, 1964, that since the application under Section 4 was not made within a period of ninety days after the commencement of the Limitation Act, the application was barred by time.

12. Section 30, in so far as it is relevant for our purposes, is in these terms :

'30. Provision for suits, etc. for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908. Notwithstanding anything contained in this Act,--

(a) ...............

(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier.'

Section 2 (of the Limitation Act 1963) defines for the first time an 'application' as including 'a petition'. The expression 'period of limitation' is defined by Section 2(J) as meaning the period of limitation prescribed for any suit, appeal or application by the Schedule 'and' prescribed period 'means' the period of limitation computed in accordance with the provisions of this Act. EX facie, Section 30 applies to a suit for which the period of limitation prescribed by this Act is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908. Now, if the Limitation Act, 1908 did not prescribe any period of limitation for an application under Section 4 of the Act, then it was an unlimited period and if the present Act prescribed any period of limitation for such application, then it will be a case where the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act and the application under Section 4 in that case would then be required to be made within a period of ninety days next after the commencement of the Limitation Act, 1963. We may derive support for this view from the observations, though made in a different context, by the Supreme Court in Syed Yousuf v. Syed Mohammed : [1967]2SCR318 .

13. Counsel for the Bank has strenuously urged that the Limitation Act, 1963 is applicable to an application made under Section 4 of the Act end therefore, the application made by the judgment-debtors in the instant case on 3rd June, 1965 was barred under Article 137 of the Limitation Act, conceding, however, that no period of limitation was provided for such applications by the Limitation Act, 1908 and that Article 181 of the said Limitation Act was not applicable to all such applications and petitions. Sri S. C-Mathur has, on the contrary, urged on behalf of the judgment-debtors that the application mentioned in Article 137 can only refer to an application filed under the Code of Civil Procedure.

14. It may be relevant to read Article 181 of the old Limitation Act of 1908 and Article 137 of the new Act (36 of 1963)

Description of Application

Period of Limitation

Time from which period begins to run

181.

Application for which no period of limitation isprovided elsewhere in the Schedule or by section 48 of the Code of Civil Procedure, 1908.

Threeyears

When the right to apply accrues.

137.

Any otherapplication for which no period of limitation is provided elsewhere in thisDivision.

Three years

When the right to apply accrues.

15. In Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., Salem : [1953]4SCR351 the Supreme Court while determining the scope of Article 181 of the Limitation Act of 1908, observed :

'The Article has in a long series of decisions of most, if not all, of the High Courts been held to govern only application under the Code of Civil Procedure. It may be that there may be divergence of opinion even within the same High Court, but the preponderating view undoubtedly is that that Article applies only to applications under the Code.'

16. The same rule was reiterated by the Supreme Court in a later decision in Mohammad Usman v. Union of India : [1969]2SCR232 and the Supreme Court gave the following reasons for adhering to the earlier view:

'In amending Articles 158 and 178 the Legislature acted upon the view that the references to the Code of Civil Procedure, 1908 in the second schedule to the Limitation Act could not in the absence of the amendment be construed as references to the Arbitration Act, 1940. At the same time the Legislature refrained from amending Article 181 and to providing that the Articles will apply to other applications under the Arbitration Act, 1940, It is manifest that the Legislature intended that save as provided in Articles 158 and 178 there would not be any limitation for other applications under the Act.'

17. All the above decisions were under the Limitation Act, 1908. The Limitation Act, 1963 has repealed that Act and Article 137 has taken the place of the old Article 181. Substantially the language of Article 181 of the old Limitation Act is in pari materia with the language of Article 137 of the new Limitation Act. It may be that Article 137 alone appears under Part II in the Third Division of the Schedule to the Limitation Act and that has led the learned counsel to urge that Article 137 is intended to be applicable not only to applications under the Code of Civil Procedure which have not been otherwise provided for in the Third Division but also to applications under the special Acts. But the words of Article 137 do not indicate that it would apply as a residuary Article to applications made under all laws for which no period of limitation is specifically provided in the new Limitation Act. The corresponding words in Article 181 were 'elsewhere in this schedule or by Section 48 of the Code of Civil Procedure, 1908' and it is difficult to conclude that the expression 'elsewhere in this Division' can have a wider connotation, more so when the words 'or by any other law for the time being in force' are not found there.

18. In Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli : (1969)IILLJ651SC , which was a case under the Limitation Act, 1963, the Supreme Court again examined the scope of Article 137 in relation to Article 181 of the old Limitation Act. After reference to the cases under Article 181 of the old Limitation Act, the Supreme Court held that the scope of Article 137 of the new Limitation Act was not materially different from that of Article 181 of the old Limitation Act. At page 1342 the following observations occur:--

'In fact, the addition of the word 'other' between the words 'any' and 'application' would indicate that the Legislature wanted to make it clear that the principle of interpretation of Article 181 on the basis of ejusdem generis should be applied when interpreting the new Article 137. This word 'other' implies a reference to earlier articles, and, consequently, in interpreting this article, regard must be had to the provisions contained in all the earlier articles. The other Articles in the third division to the schedule refer to application under the Code of Civil Procedure, with the exception of applications under the Arbitration Act and also in two cases application under the Code of Criminal Procedure... ......It is not possible to hold that the intention of the Legislature was to drastically alter the scope of this Article so as to include within it all applications, irrespective of the fact whether they had any reference to the Code of Civil Procedure.'

19. The correctness of the decision appears to have been doubted by the Supreme Court in their later decision in Nityanand M. Joshi v. Life Insurance Corporation of India : (1969)IILLJ711SC where Sikri, J., as he then was, observed:

'It is not necessary to express our view on the first ground given by this Court in Civil Appeals Nos. 170 to 173 of 1968 D/- 20-3-1969 : (1969)IILLJ651SC . It seems to us that it may require serious consideration whether applications to courts under other provisions, apart from Civil Procedure Code, are included within Article 137 of the Limitation Act, 1963, or not.'

20. The rule laid down by the Supreme Court in Athani Municipality's case : (1969)IILLJ651SC (supra) having not been modified or reconsidered so far, it will be binding on this Court and accordingly we hold that an application under Section 4 of the Zemindars' Debt Reduction Act, 1953, would not be governed by Article 137 of the Limitation Act. The result is that there is no period of limitation prescribed by the new Limitation Act for an application to reduce the decretal debt under Section 4 of the Act, and, that being so, the application made by the judgment-debtors cannot be said to be barred by time. In these premises I respectfully dissent from the view taken by a learned Single Judge of this Court in U.P. Sunni Central Board of Waqf v. Khurshed Haider (1971 All LJ 1126).

21. Now, the next point that falls for determination is whether, on the facts of the present case and as held by the court below, Section 4 (2) of the Act is attracted or, as contended by the counsel for the Bank, Sub-section (3) would apply. In disposing of this vexed question I have to consider in what the interests of the judgment-debtors ceased and became vested in the State by virtue of the Notification made under Section 4 of the U. P. Zamindari Abolition and Land Reforms Act (to be hereinafter referred as Act 1 of 1951).

22. It is not in dispute that the Taluqa of Khajoorgaon was an estate within the meaning of the Act. Section 4 of the said Act provides for vesting of an estate in the State on the making of a Notification thereunder and the Taluqa of Khajoorgaon was vested in the State by virtue of the Notification under Section 4. Section 4 declares that

'all such estates shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances'.

Section 6 prescribes the consequences ensuing in the area to which the Notification relates from the beginning of the date of vesting, and we may refer to Section 6 (a) (1) as that will show what came to be acquired by the State in the estate as defined by Section 3 (8) of the said Act.

'(a) all rights, title and interest of all the intermediaries--

(1) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries tanks ponds water channels, ferries, pathways, abadi sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of Sub-section (1) of Section 18 apply).........

shall cease and be vested in the State of Uttar Pradesh free from all encumbrances.'

23. Section 9 is another provision and it provides as follows:

'All wells, trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed.'

24. It would thus appear that although all lands, whether cultivable or barren, or grove, vested in the State on the Notification under Section 4, but the Act has left from acquisition such rights of the intermediary as Sections 6 (a) (1) and 9 specify, and the mortgagee can put such interests to sale if they are covered by the mortgage. Consequently, if, despite the vesting under Section 4, there are rights and property which continue to belong to the intermediary and in which the interest of the intermediary has not ceased, and if they are held covered by the mortgage, it would be a case falling under Section 4 (3) and not under Section 4 (2) of the Act.

25. Counsel for the judgment-debtors has in his endeavour to take the case out of the ambit of Sub-section (3) of Section 4 contended that the estate, which came to be vested in the State, was only an area of land not comprising the rights or interests of the intermediary therein. The term 'estate', as urged by him, as defined in Section 3 (b) of Act 1 of 1951, refers to the area and not to different items of properties belonging to the erstwhile intermediary. We are unable to accept the submission. The word 'estate' has been defined for the purpose of identification of the specific area of territory; some demarcation was necessary for the purposes of vesting in the State under Section 4. But in such area the intermediary had certain rights, title and interest and all such rights, title and interest, except those provided otherwise in Sections 6 and 9 ceased in the consequence of vesting. The scheme underlying the Act fortifies our opinion.

26. The object of the Legislature, as set out in the Preamble of the Act, was to abolish the zamindari system and to acquire the rights of the intermediaries and to pay compensation for acquisition of those rights. The land of the mahals recorded in any of the registers described in Clauses (a), (b), (c) or (d) of Section 32 of the U. P. Land Revenue Act, 1901, was 'state' within the meaning of Section 3 (8) and by Section 4 the right of the intermediary in that estate vested in and stood transferred to the State, The rights, title and interest of the intermediary in such estate were not outside it. They were appurtenant to his ownership of the land. A right without an object, in respect of which is exists, is as impossible as a right without a subject to whom it belongs. Clauses (a), (c) to (f) and (h) of Section 6 expressly deal with the rights and obligations of intermediaries and the inter-action thereon of the notification of vesting. The key words of Clause (a) are 'all rights, title and interest of all the intermediaries and they indicate a nexus between a right and the land in the 'estate'. Sub-clauses (i) and (ii) of Clause (a) and Clause (b) enumerate what in the consequence of vesting was acquired by the State and what remained intact with the intermediary Even proprietary rights of the intermediary in sir, khudkasht and grove-land vested in the State and what was conferred on the intermediary by Section 18 was the right of a bhumidhar, a new right altogether. The right of the proprietor of an estate to hold mela on his own land was a right in the estate being appurtenant to his ownership of the land and the Legislature recognising such a right did not acquire the right to hold the melas or bazars over the land to which Clauses (a) to (c) of sub-section (1) of Section 18 apply. Analysed in that manner, although the rights and interests of the intermediary cannot be called 'an area included under one entry in any of the registers', but there are rights and interests of the recorded proprietors in the land comprising the mehal and the Legislature in Section 6 expressly gave recognition to such rights.

27. The mortgaged security, as it would appear from the recitals of the deed of mortgage, consisted of the Taluqa comprising 67 entire villages together with all the existing and future rights and interests appurtenant thereto. The words 'mai tamami huquq wa marafiq mutelliq haqieyat mazkur maaujuda hal wa ayenda' are wide enough to take in the rights appurtenant to the Taluqdari without any reservation or exception.

The point should not detain us long because in the First Execution Decree Appeal No. 8 of 1953 (filed before the High Court, Lucknow Bench) the judgment-debtor had not challenged the correctness of the decision of the executing court that the houses, trees and the wells could be sold in execution of the decree.

28. For the considerations in the foregoing, the present is a case where the mortgaged property consists partly of 'estate' and partly of property other than 'estate' bringing it within the purview of Sub-section (3) of Section 4 of the Act.

29. The decision on the question of res judicata lies within a short ambit. The relevant facts necessary to decide that point are not in dispute. The Bank put the decree into execution in the year 1940 (it being Execution Case No. 80 of 1940). An application was made by the decree-bolder on 16th April, 1958 that the compensation bonds of judgment-debtors in respect of the mortgaged property be sold and transferred to the decree-holder and the proceeds received therefor be ordered to be paid to the decree-holder. Rana Sheo Ambar Singh filed an objection that the bonds should be transferred to the decree-holder on their face value; the heirs of Sheo Pratap Singh took, amongst others, the plea that Section 2 (f) (iii) of the Act was unconstitutional, but the contention was repelled for want of any precedent to substantiate it. Counsel for the Bank has on these facts contended that the judgment-debtors having raised the plea available to them under the Act and it was rejected by the court, the claim for a similar relief by a subsequent application under Section 4 of the Act was barred upon the general doctrine of res judicata.

30. Counsel for the judgment-debtors has met the contention in two ways : First, placing reliance upon the non obstante provision in Sub-section (1) of Section 4, he has urged that Section 11 of the Act is not applicable to a proceeding under Section 4 of the Act; secondly, the executing court was not competent to reduce the decretal debt in the manner provided by the Act which could alone be done by means of an application under Section 4.

31. The answer to the first contention is furnished by the decision of the Supreme Court in Daryao v. State of U. P. : [1962]1SCR574 where the Supreme Court extended the rule of res judicata to petitions under Articles 32 and 226 of the Constitution. Gajendragadkar, J, speaking for the court and following with approval a passage in Halsbury's Laws of England, 3rd Edition, Volume 22, p. 780, that

'subject to appeal and to being amended or set aside, a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences.'

observed at page 1462:

'...... but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicaba, they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.'

32. In view of the above, the plea that the general rule of res judicata should not be allowed to be invoked in a proceeding under Section 4 of the Act cannot be sustained.

33. The rule, however, is subject to various limitations, namely, that the judgment in the former action must have been rendered by a court or a tribunal of competent jurisdiction and secondly there should have been a judicial determination of rights in controversy with a final decision thereon. The earlier question at issue must be relevant in determining the question of res judicata in the subsequent proceeding. The core of the matter will always be : What was the substantial question that came up for decision in the earlier proceedings? And as ruled by the Supreme Court (at page 218) in Gulab Bai v. Manphool Bai : [1962]3SCR483 ,

'it is the whole of the suit which should be within the competence of the Court at the earlier time and not a part of it......... the word 'suit' in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it.'

34. The Supreme Court cited with approval the decision of the Privy Council in Gokul Mandar v. Pudmanund Singh ((1902) 29 Ind App 196) (PC) the ratio of which may be relevant here. There the respondent brought a suit for possession against the appellants alleging that they were the tenure-holders under their lease and that they were precluded from assessing any ryot right in the said land, because they had failed to get their lease right recorded in the settlement proceedings under the Bengal Tenancy Act. In the course of those proceedings a question arose about the status of the appellants and the Assistant Settlement Officer directed the appellants to be entered as tenure-holders and his decision was affirmed in appeal by the District Judge and again by the High Court. Construing the effect of Section 13 of the Code of 1382, it was said

'...... a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised'.

35. In a similar strain we find the opinion delivered by the Supreme Court in Ram Nandan v. Kapildeo : [1951]2SCR138 . Repelling the plea of constructive res judicata raised by the judgment-debtors, it was said that

'when the decree-holder contended that Section 11 of Bihar Money Lenders' Act was declared void and ultra vires and that, therefore, Section 11 of the new Act, which corresponded to Section 11, was also inapplicable, the judgment-debtors pleaded that they were entitled to the benefit of Section 7 of the new Act. The Federal Court held in Ramnandan Fd. v. Goshwami Madhwanand that the judgment-debtors were entitled to claim the benefit of the provisions of the new Act when the executing court proceeded under Section 13 to determine the value of the properties to be sold. The correct interpretation of Section 7 was not in question between the parties. To say that the appellants were entitled to take advantage of the provisions of Section 7 is entirely different from the contention that the interpretation sought to be put by them on Section 7 was the right one. The Federal Court was not dealing with any question of interpretation at all.'

36. Applying the above principles, the contention of the counsel of the judgment-debtors seems to be unacceptable. The amount due under the decree is, no doubt, a matter relating to its discharge or satisfaction and if the judgment-debtor omits at one stage of the execution proceeding to dispute it, he cannot on the principle of constructive res judicata, in generality of cases, reagitate it at the subsequent stage of the same proceeding. But where the judgment-debtor claims relief under a remedial legislation, such claim can only be entertained and adjudged by a tribunal or a court of competent jurisdiction under the statute. Here the Act sets out a complete procedure for the scaling down of the secured debts due against the zamindars whose estate had been vested in the State under Section 4 of the Act 1 of 1951; notwithstanding any law or anything contained in the Code of Civil Procedure, even decrees passed before the commencement of the Act are liable to be reopened under Section 4 upon an application made by the decree-holder or the judgment-debtor to the court which passed the decree. Sub-sections (2) and (3) prescribe the conditions for the exercise of jurisdiction by the court to which such application is made. Under Section 7, after the amount has been reduced, the decree, to the extent of the reduction so effected, is deemed for all purposes and on all occasions to have been duly satisfied. Thus the decree passed against the judgment-debtors was required by law to be reopened and no provision of the Code of Civil Procedure or of equity could bar such a remedy. The intention of the law is fair and manifest that those, whose estates had been acquired, should be given e relief The order made under Section 4, unlike an order made in the course of execution proceedings, is not subject to an appeal under the Code. Such being the provisions of the Act, there is no escape from the conclusion that the court, while deciding an application under Section 4, is not a court exercising jurisdiction concurrent with that of the court executing the decree. An application under Section 4 is not in the nature of an execution proceeding nor it is a step in the aid of execution. The executing court was not competent to entertain the application and grant relief to the judgment-debtors under the Act. Nor the correct interpretation of Section 2 (f) and whether the judgment-debtors were entitled to the benefit under the Act was materially and directly in issue in the execution proceedings. The principle of constructive res judicata cannot, therefore, apply.

37. For the discussion in the foregoing, we are of the opinion that the court below committed illegality in the exercise of its jurisdiction by applying Sub-section (2) of Section 4, although the mortgaged security consists partly of 'estate' and partly of property other than 'estate', attracting the application of subsection (3). In the consequence, the case will have to be remanded to the Civil Judge, Rae Bareli, to proceed afresh under Sub-section (3) of Section 4 and determine the amount in the manner prescribed therein.

F. A. F. Os. Nos. 17, 18, 19, 20, 21 and 22 of 1964 and First Execution Decree Appeal 9 of 1964.

38. Briefly stated, these First Appeals arise from various applications made by the Bank to restrain the judgment-debtors from alienating or otherwise disposing of their property with the object to ensure the fruition of the decree under Order 34, Rule 6 of the Code which the Bank might be compelled to obtain from the court, the mortgaged security and the sale proceeds thereof being manifestly insufficient to satisfy the final decree passed as far back as the year 1926. The execution proceeding, and which continues to be pending, was taken in the year 1940.

39. Before we advert to the averments made in the applications and the grounds of challenge by the judgment-debtors, it would be necessary to clear the legal ground in which the rival contentions have to be determined. We agree with the counsel for the judgment-debtors that a personal decree under Order 34, Rule 6 can be granted only after the mortgagee has exhausted his remedies against the security; it can be granted only after the same had been carried out and the deficiency ascertained. We also agree with the learned counsel that a personal decree cannot be passed in every suit for sale upon a mortgage; such a decree can be passed only where the defendant by his contract or otherwise is under an obligation to pay the mortgaged debt and the plaintiff has right to enforce the personal obligation not barred by limitation at the date of the suit for sale and, this being so, we would have been relieved of the necessity of determining the questions likely to arise on the making of an application for personal decree under Order 34, Rule 6. But the counsel for the Bank has invited our attention to tile terms of the deed of mortgage which inter alia, by an express stipulation bind the executant, his heirs and successors for the recovery of the debt not only from the mortgaged and hypothecated Taluqa but also from other movable and immovable property of the mortgagor and he has strenuously contended that the trial court has by negativing the very right of the mortgagee to make an application under Order 34, Rule 6 against the legal representatives of Raja Uma Nath Bux Singh for the balance of the money erred in law which might cause material prejudice to the Bank in subsequent proceedings. Accepting the submission of the learned counsel and leaving the question whether or not a personal decree and, if so, in what amount, can be granted to the Bank under Order 34, Rule 6 of the Code to be decided at that stage, we consider it necessary to determine the correctness or otherwise of the view that the decree-holder cannot invoke Order 34, Rule 6 against the legal representatives of the original judgment-debtor, not being parties to the suit.

40. Order 34, Rule 6 provides that the mortgagee may by way of application, if the balance is legally recoverable from the defendant otherwise than out of the property sold, obtain a decree for such balance. The submission of the counsel for the judgment-debtors, which prevailed with the court below, was that the application under Order 34, Rule 6 can be made against the defendant in the mortgage action and the decree-holder, therefore, cannot avail of this remedy even against the heirs of the deceased judgment-debtor. We are of the opinion that although Rule 6 does use the word 'defendant', but that does not mean that the decree-holder cannot apply under the Rule against those who are the 'legal representatives' of the deceased as defined by Section 2(11) of the Code of Civil Procedure, to have the balance money paid out of the assets of the deceased in the hands of such legal representatives which had not been duly disposed of.

41. The different parts of the Code, if read as a whole, warrant a similar conclusion. 'Legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person, on whom the estate devolves on the death of the party so suing or sued: see Section 2(11) of the Code. Under Section 50, where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased and 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. We have then general provision in Section 146, which, as observed by the Supreme Court in Nagendra Nath v. Commr. of Hills Division : [1958]1SCR1240 , should be construed liberally so as to advance justice and not in a restricted or technical sense. In cases of assignment, creation or devolution of any interest during the pendency of a suit, we have Order 22, Rule 10, which enables the person, in whose favour the assignment, creation of devolution of interest has taken place, to be arrayed on the same side in the suit as the person, from whom it has passed, and likewise against a person upon whom such interest from the defendant has come or devolved. If, therefore, a pending suit may be continued by or against the person upon whom the interest has come or devolved and if a legal representative, who intermeddles with the estate of the deceased can be sued in a representative character and if on the death of the defendant judgment-debtor the execution of the decree can be obtained against the legal representative to the extent of the property of the deceased in his hands, we fail to see why the decree-holder cannot make an application under Order 34, Rule 6 of the Code to enforce the personal liability of the deceased judgment-debtor qua his estate in the hands of the legal representatives.

42. Reliance was placed by the counsel for the judgment-debtors upon a number of decisions in support of his contention that the court has no jurisdiction to pass a decree against persons who were not parties to the original suit. The case reported in Mt Faiyazi Begum v. Sabir Hosain : AIR1927All691 enunciates no principle that can assist the judgment-debtors; nor does it bear any parallel to the facts of the case before us. All that was decided in that case was that subsequent mortgagee, who had paid off the prior mortgage, and then brought a suit on both the mortgagees without im-pleading the daughters, who were also the heirs of the deceased mortgagor, could not have in law obtained a personal decree against the daughters under Order 34, Rule 6. Obviously that was not a case in which the decree was obtained against the mortgagor and after his death the application under Order 34, Rule 6 was made. There is another case also cited by the learned Advocate, namely, Shanker Bhatta v. Shanker Upadhya, (AIR 1949 M.ad 1) (FB). The observation in the judgment, which is relied upon, is at page 2 and runs in these terms :

'So far as the appellant is concerned he has a further objection. He was not a party to the mortgage deed and is not under any obligation regarding the personal covenant contained in it and, consequently, in addition to the matters already pointed out, there cannot be any recourse against him'.

The irrelevancy of the citation is too obvious to need any elaboration. The third case, to which reference was made, is Balak Ram v. Inayat Begum, (AIR 1935 Lah 940) where it was held :

'There is no law under which a personal decree embodied in an ordinary mortgage decree, whether preliminary or final, can be enforced against persons who were not parties to that suit.'

But that principle can have no application to case where the personal decree would be enforced only against the assets of the deceased in the hand of the legal representatives.

43. For the reasons mentioned in the above, we are of the view that an application under Order 34, Rule 6 can be made by the decree-holder against the judgment-debtors who are the legal representatives of the deceased mortgagor.

44. Section 52 of the Code of Civil Procedure had been invoked by the decree-holder to make the legal representatives of the deceased judgment-debtor liable to account for the profits received by them from out of the properties of the deceased in their hands and to make them available for satisfaction of the decree to be obtained under Order 34, Rule 6 of the Code. The court below has rejected the application, and rightly. There can be no doubt that the heirs of the deceased judgment-debtor became entitled upon his death to the rents and profits which might accrue from the immovable property. Those rents and profits if received by them could not be treated in law as the assets of their deceased father. They were their assets and they were entitled to them not as representatives of their predecessor but in their own right. Moreover, a proceeding under Section 52 can be taken by the decree-holder in course of the execution and not in the manner sought for. In that view of the matter, the application under Section 52 of the Code was misconceived and that disposes of First Execution Appeal No. 9 of 1964.

45. We may now turn to other appeals arising from the applications made by the decree-holder under Order 38, Rule 5 of the Code of Civil Procedure together with a prayer for interim injunction to restrain the judgment-debtors from disposing of the non-mortgaged property on the ground that there being a greater possibility of the sale of the mortgaged property not sufficing to meet the decree and the judgment-debtors were about to dispose of such property with the object to delay the execution of decree under Order 34, Rule 6, C.P.C. that may be passed against them, the corpus required being preserved from legal waste. In two of these applications the properties involved are the two houses situate in Rae Bareli, owned by the deceased judgment-debtor. In another application Zamindari Abolition Compensation Bonds payable to Rana Sheo Am-bar Singh and Sheo Pratap Singh with respect to 33 villages (which were not mortgaged) and in the fourth application similar bonds payable to the said judgment-debtors with respect to l/4th of the compensation money of villages (which had not been mortgaged) with the Bank were sought to be attached and, in the alternative a prayer for temporary injunction was also made. Yet another application was made to restrain the judgment-debtors from withdrawing Rupees 25.000 deposited by them as security in the High Court of Allahabad in the Supreme Court Appeal No. 68 of 1956. Thereafter, the Bank also moved an application to restrain the judgment-debtors from realising the compensation under the U. P. Imposition of Ceiling on Land Holdings Act, until the final disposal of the application under Order 34, Rule 6 of the Code. The learned Civil Judge issued interim attachment and notices to the judgment-debtors who filed objections not only contending with the legality of the notices but they also challenged the right of the decree-holder in making such an application before the decree under Order 34, Rule 6 of the Code had been passed against them.

46. The learned Civil Judge rejected all these applications holding that the applications did not make out a case in which either an attachment before judgment or injunction should be allowed. The affidavits sworn on behalf of the Bank were either inadequate or were defective. The allegation in the affidavit was sworn on information received and believed to be true but they did not state the grounds of belief or the source of information with sufficient clarity. In absence of a complete affidavit by persons having personal knowledge of the alleged removal or intention to remove the property with a view to obstruct or delay the execution of the decree and in absence of any proved overt act by the judgment-debtors, to instance, negotiation or offer for sale, or that there was danger of alienation of the property, the trial court did not feel satisfied in maintaining the rule under Order 38, Rule 5, Code of Civil Procedure. Yet another objection taken by the judgment-debtors and which prevailed with the learned. Civil Judge was that the provisions of Order 38, Rule 5 of the Code were not complied with by the court, making the order of attachment itself invalid.

47. We agree with the submission of the learned counsel for the judgment-debtors that the provisions of Rule 5, Order 38 were not complied with at all. The Court instead of issuing a notice in Form No. 5 (Appendix F) issued a notice in the general form, though making the attachment simultaneously. Rule 5, Order 38 clearly lays down that before an order of attachment can be made it is incumbent on the court to direct the defendant to furnish security or to show cause why he should not furnish security. Rule 6 provides that if the defendant fails to give security or to show cause, then the court may order the attachment of the property specified in the application of the plaintiff. The court under Rule 5, Sub-clause (3) has the power to direct conditional attachment of the property specified in the application but no such order of conditional attachment could be passed without an order under Clause (1) of the same rule. The judgment-debtors were not called upon to furnish the security or to show cause as provided for under the provisions of Rule 5, Order 38 of the Code. An attachment which does not comply with the provisions of Rule 5, Order 38 is illegal and ultra vires and, therefore, the decree-holder cannot claim any benefit under it. We derive support for this view from a decision of this court in Sri Krishna Gupta v Ram Babu : AIR1967All136 .

48. We also agree with the learned counsel for the judgment-debtors that the application of the Bank to put restraint upon the payment of compensation bonds under the U. P. Imposition of Ceiling Act was premature, because by then compensation payable to the judgment-debtors had not been determined by the authorities under that Act.

49. Counsel for the Bank has, in the alternative, strenuously urged that in the circumstances of the present case the court could in the exercise of inherent powers under Section 151 of the Code restrain the judgment-debtors from disposing of other assets of the deceased judgment-debtor in their hands in order to ensure the satisfaction of the decree under Order 34, Rule 6 which the Bank may have to obtain since the mortgaged security was manifestly insufficient to satisfy the decretal debt. Counsel for the judgment-debtors reiterating the stand they had taken in the trial court has contended that in absence of any evidence to show waste or damage of the property by the judgment-debtors, an interim injunction under Order 39, Rules 1 and 2 of the Code cannot be made. Further, it has been urged by the learned counsel that the suit having ended in a final decree and no personal decree having yet been passed, the aid of Order 39 cannot be extended to the decree-holder.

50. Now, it is well settled that until the mortgaged properties are brought to sale no personal decree can be obtained against the defendants but if a decree-holder makes out a case under Order 38, Rule 5 or under Order 39, Rule 1 of the Code and when the court is satisfied amongst other things before making an order under that rule, that the hypothecated property would be insufficient to discharge the mortgaged debt the court can proceed to attach or to restrain the alienation of the non-hypothecated property in a suit for sale under the mortgage : See Bishambar Sahai v. Sukhdevi, ((1894) ILR 1.6 All 186) and Jogemaya Dassi v. Baidyanath Pramanick (ILR 46 Cal 245 = (AIR 1919 Cal 258 (2).

51. As regards the scope of Order 39, Rule 1 of the Code it has been held by the Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira Lal, : AIR1962SC527 that there being no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39, C.P.C. if the Court is of opinion that the interests of justice require the issue of such interim injunction. In many cases where the circumstances require it, the courts have thus proceeded upon the assumption of possession of inherent power to set ex debito justitiae and to do that real and substantial justice for the administration of which alone they exist. (See Dhaneshwar Nath v. Ghanshyam Dhar : AIR1940All185 ).

52. Story in Equity Jurisprudence states the basic principle in the following passage:

'It may be remarked in conclusion upon the subject of special injunctions that courts of equity constantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such injunction shall be granted or withheld. And there is wisdom in this course; for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights or redress. The jurisdiction of these courts thus operating by way of special injunction is manifestly indispensable for the purposes of social justice in a great variety of cases and, therefore, should be fostered and upheld by a steady confidence.........It ought to be guarded with extreme caution and applied only in very clear cases.' (page 625).

53. Accordingly the courts of equity in order to prevent waste or destruction or deterioration of property pendente lite or to prevent irreparable mischief applied precautionary justice in the nature of bills known as Quia timet Bill; the party seeks the aid of the court of equity because he fears (Quia timet) some future probable injury to his right or interests, and not because ah injury has already occurred which requires any relief.

54. 'There are two necessary ingredients to support a Quia timet action : there must if no actual damage is proved be proof of imminent danger and there must also be proved that the apprehended damage will, if it comes, be very substantial and irreparable; i.e. it must be shown that if the damage does occur at any time it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action' per Pearson, J. in Fletcher v. Baaley, ((1885) 28 Ch D 688 at p. 698). In balancing the comparative convenience or balancing inconvenience from granting or withholding such relief the court may take into consideration what means it has of putting the party who may be ultimately successful in the position he would have stood if his legal rights had not been interfered with. A person seeking for a quia timet action has to show, no doubt, a prima facie case but he is not required to make out clear legal title but he must satisfy the court that he has a fair question to raise as to the existence of the legal right which he sets up: (Kerr on Injunctions, 6th Edition pages 25-26 and 15-16).

55. Applying these principles we are clearly of the opinion that the mere fact that there are certain provisions as regards the issue of injunction in Order 39, C.P.C. does not debar the court from passing orders of temporary injunction for doing justice in the exercise of its inherent power under Section 151 of the Code, though the discretion has to be exercised with extreme caution and applied only in very clear cases.

56. This brings us to the next question whether in the circumstances of the present case the learned Civil Judge acted legally or irregularly in the exercise of his jurisdiction in refusing an order of interim injunction. The main contention on which the relief, in the alternative, by way of interim injunction was sought was that the mortgaged property was obviously insufficient to satisfy the decretal debt and by the time a decree under Order 34, Rule 6 happened to be passed, the assets of the deceased judgment-debtors in the hands of the respondents would be beyond the reach of the decree-holder on account of the apprehended alienation or disposal of such property by them, in the interval, in support of his contention the Bank has brought to their use the conduct of the judgment-debtors and of their predecessor in not making the payments of the decretal debt despite various compromises having been entered into the course of the earlier execution proceedings. The preliminary decree was passed, as far back as the year 1925. The bhumidharl rights were held non-saleable by the Supreme Court but as regards the trees belonging to the erstwhile intermediary there appears a concession was made by the judgment-debtors that the walls, buildings and trees were saleable in execution of the decree. But in spite of that concession the judgment-debtors have resisted the sale of the trees as well and the matter is now pending before the Supreme Court. The decree as amended under the U. P. Agricultural Relief Act on 14th March, 1937 stood reduced in an amount of Rs. 4,38,605 with interest at 51/4% and the amount due as on 23rd October, 1965 was Rs. 8,23,000 and odd. By the sale of compensation bonds and the negotiation of cash vouchers a sum of Rupees 1,39,000 and odd has been realised from the judgment-debtors. The application of the Bank dated 7th January, 1967 would show that the value of the properties as estimated by the judgment-debtors which had not vested in the State and which constitutes part of the mortgaged security does not exceed Rs. 1,77,802. On 2nd May, 1972 the compensation bonds of the value of Rs. 2 lacs were released in favour of Rana Sheo Ambar Singh to enable him to meet the expenses of the marriage of his daughter on the security of immovable property furnished to the satisfaction of the Civil Judge.

57. It has been further averred by the Bank in the affidavit (See F. A. F. O. No. 17 of 1964) that on 25th April, 1959 Rai Bahadur Sheo Pratap Singh had disposed of valuable house property situate in village Manoharganj and Jagatpur and farmland situate in Tahsil Dalmay District Rae Bareli. In the objections which the legal representatives of Rai Bahadur Sheo Pratap Singh filed the allegation was not specifically controverted. Indeed, they took the plea that they were not liable to pay the decretal amount out of the non-mortgaged property and they having not been substituted as legal representatives no application under Order 34, Rule 6, C.P.C. could be entertained against them. From the aforesaid facts, it is, therefore, manifest that the judgment-debtors had been avoiding the payment of the decretal money and preventing the decree-holder on one excuse or the other to reap the fruits of the decree. Even after the scaling down of the decretal debt under Section 4 (3) of the Zamindars' Debt Reduction Act, the reduced decretal debt, as informed by the counsel for the Bank, may approximate to Rs. 5,00,000, and after making allowance for what has been recovered and may be realised from the sale of non-vested mortgaged property, the balance sum of Rs. 1,50,000 may be found due from the judgment-debtors in terms of the decree under Order 34, Rule 6 which may be passed against them. In our opinion, a case has been made out for the preservation of non-mortgaged assets of the deceased debtor in the meantime in status quo to protect the rights and interest of the decree-holder by an action in the nature of quia timet. And in the ends of justice, I, therefore, consider it necessary and expedient to restrain the respondents from disposing of the assets of the mortgagor in their hands of a value of Rs. 2,00,000.

58. I may also state that learned counsel for the Bank has informed us in writing that the market price of the un-collected Zamindari Abolition Compensation Bonds of 40 years of the face value of Rs. 100 has increased to Rs. 125.

BY THE COURT

59. Civil Revision No. 33 of 1969 is allowed and, setting aside the impugned order, we send back the case to the Civil Judge, Rae Bareli to proceed afresh under Sub-section (3) of Section 4 of the Act, after affording opportunity of hearing to the parties, and determine the amount in the manner prescribed therein. In the circumstances, costs shall be borne by the parties.

60. We further direct that until the liability determined under Order 34, Rule 6, C.P.C. is satisfied, the judgment-debtors shall not dispose of or cause to be disposed of in any manner or receive from the Compensation Officer the Compensation Bonds specified in the applications which have given rise to F. A. F. Os. Nos. 20 and 21 of 1964 (leaving Bonds which were released by the Court's order dated 2nd May, 1972) of a face value of Rs. 1,50,000.

61. In the result, F. A. F. Os. Nos. 20 of 1964 and 21 of 1964 are allowed, but since no further relief is being granted to the decree-holder, the remaining F. A. F. Os. including the First Execution Decree Appeal No. 9 of 1964 are dismissed. In the circumstances, costs shall be borne by the parties.


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