Skip to content


Benares Bank Ltd. Vs. B. Jugal Kishore - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1938All13
AppellantBenares Bank Ltd.
RespondentB. Jugal Kishore
Excerpt:
- - they are clearly proceeding in respect of a public or private debt, to which the applicant under the act is subject. and if the debt is to be satisfied by the court executing the decree, it must first confirm the sale and then satisfy the debt by applying the sale proceeds for payment to the decree-holder......a decree-holder's appeal against an order passed by the learned subordinate judge of gorakhpur in execution proceedings. it appears that the benares bank ltd. obtained a simple money decree against jugal kishore for a certain sum of money. the judgment-debtor's property was attached and proceedings for sale were taken. the sale took place, but it has not yet been confirmed. in the meantime, the judgment-debtor applied under the encumbered estates act to the collector, who accepted his application under section 6 and forwarded it to the special judge for action being taken under that act. the lower court which was the court executing the decree passed an order which runs as follows:the judgment-debtor produces an order passed under section 6, u.p. encumbered estates act. so acting under.....
Judgment:

1. This is a decree-holder's appeal against an order passed by the learned Subordinate Judge of Gorakhpur in execution proceedings. It appears that the Benares Bank Ltd. obtained a simple money decree against Jugal Kishore for a certain sum of money. The judgment-debtor's property was attached and proceedings for sale were taken. The sale took place, but it has not yet been confirmed. In the meantime, the judgment-debtor applied under the Encumbered Estates Act to the Collector, who accepted his application under Section 6 and forwarded it to the Special Judge for action being taken under that Act. The lower Court which was the Court executing the decree passed an order which runs as follows:

The judgment-debtor produces an order passed under Section 6, U.P. Encumbered Estates Act. So acting under Section 7(1) of that Act, I quash the execution proceedings and close the file....

2. The decree-holder has come to this Court in appeal, and contends that the sale having already taken place, proceedings for confirmation thereof could not be stayed and that in any case the execution proceedings should not have bean quashed, as the lower Court has done. The contention is that the lower Court was bound to take proceedings for the confirmation of sale and that the effect of the Collector entertaining the application and forwarding it to the Special Judge was not to nullify the sale already held.

3. In our opinion the order of the lower Court is substantially correct, though the language in which that order is couched is not the same as has been employed in the relevant section of the Encumbered Estates Act. Section 7(1) provides that when the Collector has passed an order under Section 6, all proceedings pending at the date of the Collector's order in any Civil or Revenue Court in the United Provinces, in respect of any public or private debt to which the landlord is subject, or with which his immovable property is encumbered, except an appeal or revision against a decree or order, shall be stayed, all attachments and other execution processes issued by any such Court and then in force in respect of any such debt shall be null and void, and no fresh process in execution shall, except as provided by the Act, be issued. There can be no doubt that the proceedings which a Court executing a decree is to take, after the sale but before the final order of confirmation thereof, are proceedings in execution. They are clearly proceeding in respect of a public or private debt, to which the applicant under the Act is subject. Before the sale is confirmed, the debt due from the applicant cannot be liquidated; and if the debt is to be satisfied by the Court executing the decree, it must first confirm the sale and then satisfy the debt by applying the sale proceeds for payment to the decree-holder. The lower Court was justified in staying proceedings on receipt of the information that the Collector had taken action under Section 6, Encumbered Estates Act. In effect the execution proceedings in the lower Court would be of no avail if the proceedings under the Encumbered Estates Act are carried to their conclusion. The word 'quash', occurring in the order of the lower Court should not be taken too literally, and all which the learned Judge meant was that, acting under Section 7(1), Encumbered Estates Act, he stayed his hands. Accordingly we hold that the lower Court was right in refusing to take proceedings for the confirmation of sale.

4. The learned advocate for the respondent invited us to record an opinion that the attachment which had preceded the sale became null and void. It is not necessary for the purposes of this appeal to decide this point which may never arise between the parties. We dismiss the appeal subject to the order that proceedings in the lower Court should be considered as stayed and not quashed. The appellant shall pay the costs of this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //