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Janardan Das Vs. Mahadeo Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All201
AppellantJanardan Das
RespondentMahadeo Prasad and ors.
Excerpt:
- - is clearly inconsistent with the provisions of section 45, encumbered estates act......j.1. this is a reference by the sub-divisional officer of karwi under section 113 and order 46, rule 1, civil p.c., in connexion with certain execution proceedings pending before him under chap. 5, u.p. encumbered estates act xxv [25] of 1934.2. the facts which have led to this reference may be briefly narrated. an application under section 4, u.p. encumbered estates act, was filed on behalf of shri thakur lachhmi narain ji of bara akhara and mahant janardan das. there were five creditors who were shown in the application and three debts were specified. one of those debts was on the basis of an alleged mortage by conditional sale for rs. 10,000. the other two debts were small ones and related to a profit suit and a decree in favour of some of the creditors. the application was, in due.....
Judgment:

Wanchoo, J.

1. This is a reference by the Sub-divisional Officer of Karwi under Section 113 and Order 46, Rule 1, Civil P.C., in Connexion with certain execution proceedings pending before him under Chap. 5, U.P. Encumbered Estates Act XXV [25] of 1934.

2. The facts which have led to this reference may be briefly narrated. An application under Section 4, U.P. Encumbered Estates Act, was filed on behalf of Shri Thakur Lachhmi Narain Ji of Bara Akhara and Mahant Janardan Das. There were five creditors who were shown in the application and three debts were specified. One of those debts was on the basis of an alleged mortage by conditional sale for Rs. 10,000. The other two debts were small ones and related to a profit suit and a decree in favour of some of the creditors. The application was, in due course, referred by the Collector to the Special Judge, and grade, Banda. When the matter came up before that Court, there was a compromise between all the parties. By this compromise, half the property, which apparently was under the mortgage of Rs. l0,000, was released in favour of Shri Thakur Lachmi Narain Ji. The other half was made subject to mortgage in this way that six annas share was to be mortgaged with creditor No. 1 and two-annas share with creditors Nos. 2 to 5. It was also provided that these mortgages would be self-liquidating mortgages for a period of twenty years commencing from 1348 Fasli and ending with 1367 Fasli. The Special Judge, 2nd grade, passed a decree in terms of this compromise and sent it to the Collector for execution under Section 19, Encumbered Estates Act. 'When the matter reached the Sub-divisional Officer, who apparently acts under the rules for the Collector for these purposes, he found himself in some difficulty. The first Sub-Divisional Officer who dealt with this matter on 12th December 1941, namely, Mr. Sultan Ahmad passed the following order:

Parties came to an agreement and a decree was passed accordingly by the Special Judge. There is no debt to be Liquidated. Case struck off. File.

3. Thereafter in April 1942 some report appears to have been made before the successor of Mr. Sultan Ahmad on the basis of which he directed that statements should be prepared so that liquidation proceedings might be held. It seems that statements were prepared and the Sub-divisional Officer fixed the liability of the 'debtor-applicants at Rs. 10,000. At this stage, the debtor-applicants went in appeal to the Commissioner. The appeal was heard by the learned Additional Commissioner in March 1944 and he came to the conclusion that it was for the Special Judge to fix the amount of liability in terms of money under Section 14 (7), Encumbered Estates Act. As no such amount had been determined by the Special Judge under Section 14 (7), there was no decree to be executed under chap. V, Encumbered Estates Act. He, therefore, set aside the proceedings before the successor of Mr. Sultan Ahmad and restored the order passed by Mr. Sultan Ahmad by which the case had been struck off on the ground that there was no debt to be liquidated.

4. The matter was then taken in revision to the Hon'ble Board of Revenue by the creditors. The Hon'ble Board accepted the view of the Commissioner so far as the duty of the Special Judge, II grade, was concerned to pass a decree under Section 14(7), Encumbered Estates Act and held that the Sub-Divisional Officer could not determine the liability in terms of money. The Hon'ble Board, however, further directed the Sub-Divisional Officer to state a case to this Court under Section 113 and Order 46, Rule 1, Civil P.C. Consequently, the present reference has come up before this Court.

5. It seems to us that if the Court executing the decree of the Special Judge, II grade, under Chap. v. Encumbered Estates Act had taken a slightly liberal view of the spirit of that decree, it would have been possible to grant a self-liquidating mortgage for a period of twenty years under Section 25, U.P. Encumbered Estates Act, even though the amount of liability had not been specifically stated as so many rupees under Section 14(7). This liberal view was possible without the amount having been exactly specified, because the mortgage was a self-liquidating mortgage and the amount of the debt, whatever it was, would be liquidated after twenty years. However, it seems that this point of view did not strike the executing Court and an attempt was made to get the amount specified by the Special Judge, II grade. The papers were returned to him at one stage for specifying the amount. He, however, sent them back with the remark that it was not open to him to review his predecessor's order. It may be that, strictly speaking, the decree that was passed by the Special Judge, II grade, in a way short-circuited the proceedings under the Encumbered Estates Act. But where all the interested parties to an Encumbered Estates Act proceeding are agreeable to the manner in which the debts due from the landlord applicant are to be liquidated, there is nothing in the Encumbered Estates Act which prevents the Court from adopting such a course. This will be specially so when the mode assented to by all the parties is one that is given in the Encumbered Estates Act itself. To liquidate a debt by the grant of a self-liquidating mortgage is one of the modes of liquidating the debts laid down in Section 25 of the Act. There was, therefore, no difficulty in complying with the compromise decree even though the amount of the debt had not been stated therein, and even though all the steps that are required to be taken by the Collector were not to be taken under the compromise.

6. The question before us now, however, is whether the reference to this Court is competent in view of Order 46, Rule 1, Civil P.C. That provides that a reference can be made during the execution proceedings relating to any decree which is not subject to appeal. The view of the Hon'ble Board seems to be that as Section 96(3), Civil P C. bars appeals from decrees passed with the consent of the parties, it was open to the Collector or the Sub-Divisional Officer, who was acting in his place under chap. V, Encumbered Estates Act, to make a reference to this Court under Section 113 and Order 46, Rule 1, Civil P.C. Under chap. I, Rule 6 of the rules framed under the U.P. Encumbered Estates Act, 1934, by the Provincial Government, it is provided that:

Proceedings under this Act shall be governed by the provisions of the Code of Civil Procedure of 1908 for the time being in force, so far as they are applicable and not inconsistent with the provisions of the Act and of these rules.

7. It has been contended by Mr. Asthana, on behalf of the debtor applicants, that Section 45, Encumbered Estates Act provides for appeals from all orders and makes no exception in favour of a consent decree as is the case under Section 96(3), Civil P.C. This contention seems to us to be correct and the exception mentioned in Section 96(3), Civil P.C. cannot be imported into the Encumbered Estates Act under Rule 6 mentioned above, because that would be inconsistent with the provisions of the Act as contained in Section 45. We may add that Rule 6, as it existed before' this latest amendment, specifically made it clear that Section 96 did not apply to the proceedings under the Encumbered Estates Act. The amendment of at rule was made in December 1946, and it now runs in the general form which we have mentioned above. But it is clear from the words used that any provision of the Civil Procedure Code which is inconsistent with the provisions of {the Encumbered Estates Act would not be applicable and Section 96(3), Civil P.C. is clearly inconsistent with the provisions of Section 45, Encumbered Estates Act. Under these circumstances, the decree which was under execution before the Collector or the Sub-Divisional Officer as his substitute, could be taken in appeal under Section 45, U.P. Encumbered Estates Act.

8. In this view of the matter, the reference is incompetent and is hereby rejected. We order parties to bear their own costs.


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