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Manmohan Das Vs. Mt. Radha Rani and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1944All288
AppellantManmohan Das
RespondentMt. Radha Rani and ors.
Excerpt:
.....the objection of lala man mohan das and ordering the substitution of the names of the sons of shyam sunder in place of the original decree-holder, baldeo narain, on the finding that the transfer was a good transfer, was never challenged in appeal, although it clearly fell within the purview of section 47, civil p. the execution court came to a finding that the transfer in favour of shyam sunder was not a good transfer. the first objection was made on 16th may 1938, the second on 6th august 1938, the third on 10th august 1938 and the last on 22nd september 1938. the sum and substance of these objections was that the failure of brij mohan and ram gopal, the transferees, to lodge their claim before the special judge involved, under section 13, encumbered estates act, an extinction of..........court baldeo narain, on 14th december 1932, transferred his rights under the decree to a man named shyam sunder for a sum of rs. 20,322. lala man mohan das made an application for leave to appeal to his majesty in council. this application was no. 93 of 1934. their lordships of the judicial committee finally dismissed the appeal on 20th december 1937.2. on 9th january 1933 shyam sunder applied for execution of the decree, under which the amount due on that date was rs. 7753-8-6. shortly after the application, shyam sunder died on 25th february 1983. on 10th march 1933 lala man mohan das took exception to the execution on the ground that shyam sunder had died and the prayer for substitution of his name in place of the original decree-holder could not be granted and that the purchase by.....
Judgment:

Sinha, J.

1. This is an appeal by one of the judgment-debtors, Lala Man Mohan Das, against an order passed under Section 47, Civil, P.C., whereby his objection to execution was dismissed by the learned Civil Judge. The facts of the case cover a very long period and a large field and are, as such, complicated. They are, however, briefly these. On 28th August 1923 some amount had been advanced to a firm called the United Provinces Anilinedyes Co., which was a partnership consisting of four partners. Baldeo Narain Tandon, who had made the advance, brought a suit, Suit No. 102 of 1926, on 27th August 1926, in the Court of the Subordinate Judge of Allahabad against four persons who were the partners of the firm, Mata Prasad, Lala Man Mohan Das, Pt. Krishna Kant Malaviya and Rai Bahadur Mathura Prasad Mahrotra. The suit was for recovery of Rs. 14,950 and Rs. 5872 interest. Various defences were raised to the claim, with which it is not necessary to deal at this stage. The learned Subordinate Judge dismissed the suit on 18th December 1928. Against this decree a first appeal was preferred to the High Court, F.A. No. 129 of 1929. This Court set aside the decree of the Court of first instance and decreed the suit by its judgment of 23rd November 1932. Soon after the decree of the High Court Baldeo Narain, on 14th December 1932, transferred his rights under the decree to a man named Shyam Sunder for a sum of Rs. 20,322. Lala Man Mohan Das made an application for leave to appeal to His Majesty in Council. This application was No. 93 of 1934. Their Lordships of the Judicial Committee finally dismissed the appeal on 20th December 1937.

2. On 9th January 1933 Shyam Sunder applied for execution of the decree, under which the amount due on that date was Rs. 7753-8-6. Shortly after the application, Shyam Sunder died on 25th February 1983. On 10th March 1933 Lala Man Mohan Das took exception to the execution on the ground that Shyam Sunder had died and the prayer for substitution of his name in place of the original decree-holder could not be granted and that the purchase by Shyam Sunder of the rights of Baldeo Narain Tandon was fictitious and without consideration. A further objection was taken that the amount due to him from Baldeo Narain should be set off. On 15th March 1933 Brij Mohan Lal and Ram Gopal, the sons of Shyam Sunder, applied for substitution of their names in place of their father and prayed for the continuance of the proceedings in execution. Notices were issued on 20th March 1933. On 8th April 1933 the Court made a note that the service of notices on Mata Prasad and Lala Man Mohan Das was sufficient and they raised no objection. Notices against others were issued afresh. It might be noted here that no fresh objection was raised by Lala Man Mohan Das beyond that which had been made by him on 10th March 1933. The objection of 10th March 1933 was taken up for decision on 26th August 1933. On that date, according to the order-sheet, Mr. Gaya Prasad, Vakil, was present on behalf of Lala Man Mohan Das and Mr. Nawab Bahadur, Vakil, represented the sons of Shyam Sunder, the purchaser of the decree. Some evidence was led on behalf of the sons of the purchaser of the decree, but no evidence was adduced on behalf of Lala Man Mohan Das. The Court upheld the transfer of the decree by Baldeo Narain in favour of Shyam Sunder and also ordered the substitution of the names of his sons in place of the original decree-holder, Baldeo Narain. It dismissed the objections of Lala Man Mohan Das. This order of the learned Judge rejecting the objection of Lala Man Mohan Das and ordering the substitution of the names of the sons of Shyam Sunder in place of the original decree-holder, Baldeo Narain, on the finding that the transfer was a good transfer, was never challenged in appeal, although it clearly fell within the purview of Section 47, Civil P.C. It, therefore, became final. This is one chapter of the case and we might leave it at this for the time being.

3. The Agra branch of the Benares Bank had a decree against Baldeo Narain, the original decree-holder. It secured an order from the Munsif of Agra for attaching the decree of Baldeo Narain against Lala Man Mohan Das and others. This decree was actually attached. It appears that one Gobardhan Das had also secured a decree against Baldeo Narain in Suit No. 126 of 1926 and he also put his decree in execution. This was execution case No. 145 of 1933. The execution of Gobardhan Das was opposed by the sons of Shyam Sunder on the ground that no rights had remained with Baldeo Narain and no execution could, therefore, proceed. The execution Court came to a finding that the transfer in favour of Shyam Sunder was not a good transfer. As a result of this finding the application in execution made by the sons of Shyam Sunder was dismissed on 13th February 1934, although, in point of fact, this should not have been the necessary consequence, inasmuch as the two execution cases were separate. Be that as it may, the sons of Shyam Sundar Das challenged the order dismissing their objection by means of a regular suit, Suit No. 6 of 1935. This suit was decided on 30th September 1935, in which they secured a finding that the transfer of decree No. 102 of 1926 in favour of Shyam Sunder was a valid transfer.

4. We have seen the end of the application in execution originally filed by Shyam Sunder and prosecuted by his sons, Brij Mohan and Ram Gopal. After the decision of the Suit No. 102 of 1926 they made a fresh application for execution on 22nd November 1935 against Amar Nath and Jagan Nath, the sons of Mata Prasad - evidently Mata Prasad had died meanwhile - Pt. Krishna Kant Malaviya, Lala Man Mohan Das and Rai Bahadur Mathura Prasad. They sought a certificate of transfer to the Court of the Subordinate Judge of Lucknow. This they secured and made an application for execution in the Lucknow Court, but they sought to proceed only against one of the judgment-debtors, Rai Bahadur Mathura Prasad. Their attempt, however, proved abortive and on 20fch July 1936 their execution application No. 136 of 1935 was consigned to the record room. The present application by Ram Gopal was made on 19th April 1938 and it is this application with which we have to deal in this appeal.

5. There is a third chapter of events which must also be dealt with. On 1st October 1936 Pt. Krishna Kant Malaviya, according to the appellant, made an application under Section 4, Encumbered Estates Act. The respondents do not admit that it was Pt. Krishna Kant Malaviya who made the application. Their case is that it was their son who made it. Be that as it may, we shall assume for the purposes of this case, that it was Pt. Krishna Kant Malaviya who had moved the Special Judge under Section i. The usual notices were issued, but it appears that no claim was put forward by the sons of Shyam Sunder before the learned Special Judge. Coming back to the present application for execution, which was made on 19th April 1938, we find that Lala Man Mohan Das challenged it and preferred his own objections. The procedure adopted by Lala Man Mohan Das was, if not startling, certainly novel. The objections that he preferred to the execution were not made at one time, but by means of four different applications. The first objection was made on 16th May 1938, the second on 6th August 1938, the third on 10th August 1938 and the last on 22nd September 1938. The sum and substance of these objections was that the failure of Brij Mohan and Ram Gopal, the transferees, to lodge their claim before the Special Judge involved, under Section 13, Encumbered Estates Act, an extinction of their entire claim and, at all events, to the extent of the liability of Pt. Krishna Kant Malaviya. The bar of limitation was also pleaded. It was further pleaded that the application for execution was not maintainable and, at all events, the amount claimed wag not correct. The decree-holders met the objection with regard to the validity of the transfer by Baldeo Narain in favour of Shyam Sunder by the plea of res judicata. Their case was that the order of 26th August 1933 operated as a bar against Lala Man Mohan Das.

6. On 22nd November 1939, 20th February 1910 and again on 27th April 1940 Pt. Krishna Kant Malaviya made abortive attempts under Section 20, Encumbered Estates Act for quashing the proceedings. It appears, however, that he finally succeeded in his fourth attempt on 8th July 1940. We are informed that an appeal is pending in this Court against that order. The learned Civil Judge, by his judgment of 20th August 1941, repelled all the objections and granted the application for execution. It is against this order that the present appeal has been preferred. Mr. Gopi Nath Kunzru, the learned Counsel for the appellant, who has argued the case with ability and earnestness, has assailed all the findings of the learned Civil Judge and has challenged the right of the transferees to proceed in execution. His main contention is that the failure on the part of Brij Mohan and Ram Gopal to prefer their claim before the Special Judge has the effect of extinguishing the claim in its entirety. In support of his contention he has relied upon the language of Section 13, Encumbered Estates Act. Section 13 provides that

every claim...shall, unless made within the time and in the manner required by this Act, be deemed for all purposes and on all occasions to have been duly discharged.

7. The answer to this argument is furnished by the proceedings which Pt. Krishna Kant Malaviya had taken under Section 20 of the Act and which had the effect of quashing all proceedings taken under it. He, however, tries to get over this difficulty by relying upon Section 43 of the Act. Section 43 provides that:

When an order has been passed under Section 20 quashing further proceedings under the Act, the following consequences shall ensue, namely : (a) the whole of the proceedings under this Act shall be set aside; (b) notwithstanding anything contained in Section 18, all rights and remedies and proceedings stayed and all attachments of properties mentioned in statements filed under Section 8, which had become null and void under Sub-section (1) of Section 7, shall revive to the creditors as if no action had been taken under this Act.

Section 18 is as below:

Subject to the rights of appeal or revision contained in Chap. 6, the effect of a decree of the Special Judge under Sub-section (7) of Section 14 shall be to extinguish the previously existing rights, if any, of the claimant, together with all rights, if any, of mortgage or lien by which the same are secured....

8. According to the argument of the learned Counsel for the appellant, the only effect of the proceedings under Section 20 is to revive the rights mentioned in Section 18, and as Section 13 is not mentioned in Section 43, the rights extinguished by the failure of a creditor to put forward his claim before the Special Judge, cannot be revived by any proceedings under Section 20. This loses sight of Clause (a) of Section 43, according to which 'the whole of the proceedings under this Act shall be set aside.' This question might be approached from another point of view. The Encumbered Estates Act is a remedial statute and has been provided for the amelioration of the lot of the landlord. It will be putting a strain upon both the purpose and the language of the Act to hold that the redress provided by it should be extended not only to the landlord, but also to people who do not fall within the scope of the Act or people who never sought any relief under it. In Ashraf v. Saith Mal : AIR1938All47 , which is the leading case on the effect of Section 18, Encumbered Estates Act, their Lordships made the following observation at page 1103:

At the time when the period of two months expired, the applicant had acquired the right to be free from the claims put up by the opposite party.

9. The applicant in the case was the landlord and the opposite party was the creditor. The meaning of the sentence is clear. After the expiry of the period, the applicant had acquired the right to be free. This clearly means that the claim is extinguished only to the extent of the liability of the applicant. It has, however, been strenuously contended by the learned Counsel for the appellant that if there has been no total extinction of the claim, there has been at least a partial extinction, to the extent of the liability of Pt. Krishna Kant Malaviya and the appellant is, in these proceedings, entitled to have the respondent's claim reduced to that extent. In support of his contention, the learned Counsel for the appellant takes his stand on Makund Rao v. Janki Bai ('08) 30 All. 141, Pohkar Singh v. Ram Din ('12) 1912-16 A.L.J. 171 and Mt. Bti Bai v. Tantya Singh : AIR1926All136 . These eases are no doubt based upon Section 12, Bundelkhand Encumbered Estates Act, (Local Act 1 of 1903) which reads thus:

Every claim against the proprietor in respect of a private debt shall, unless made within the time and in the manner required by this Act, be deemed, for all purposes and on all occasions, to have been duly discharged.

10. Section 13, U.P. Encumbered Estates Act, provides:

Every claim decreed or undecreed against the landlord in respect of a private debt, other than a debt due to a co-operative society registered under the Co-operative Societies Act, 1912, by its members, shall, unless made within the time and in the manner required by this Act, be deemed for all purposes and on all occasions to have been duly discharged.

11. There is no doubt that the language, to all intents and purposes, of the two sections is similar. But we do not find in the Bundelkhand Encumbered Estates Act any provision corresponding to Section 9(5)(a), U.P. Encumbered Estates Act, which enjoins upon the Special Judge to determine the amount of the joint debt which is due by the debtor or debtors who have applied and the amount due by those who have not applied. It has been held by a Full Bench of this Court in Punjab National Bank Limited v. Vishwa Nath : AIR1941All363 that the determination or apportionment of the debt must be made both where the debt imposes a joint liability and also where it imposes a joint as well as a several liability upon the debtors. The Legislature has attached considerable importance to this provision. In the case of members of a joint Hindu family there could be no such difficulty. Every one could, ordinarily speaking, be before the Court; not so with families other than the Hindu families. It has made it obligatory upon the Court, in the event of all joint debtors not seeking its aid to make them 'parties to the proceedings' and 'hear any objections that they may....' The extreme importance of this provision was emphasised by a Full Bench of this Court in Ramdeo v. Sri Sadaitan Pande ('40) 27 A.I.R. 1940 All. It is not difficult to understand the intention of the Legislature. The U.P. Encumbered Estates Act is perhaps not only in the direct line of succession to the Bundelkhand Encumbered Estates Act, but is, in several respects, an improvement upon its predecessor. It has been the policy of the Legislature to make the Act as self-contained as possible and it is for this reason that several provisions find place in it for which one looks in vain in the earlier Act of 1903. If the intention of the Legislature is, as it must be held to be, to make the Act self-contained, the determination of the debt must be made by the Special Judge in proceedings under the Encumbered Estates Act. If there was no such apportionment or determination by the Special Judge, the Civil Judge has no jurisdiction to enter upon an enquiry in that direction.

12. We have dwelt upon this aspect of the matter at some length although, in our opinion, Section 20 is a complete answer even to this argument. It has also been contended that in any case the appellant is entitled to a set-off. There can be no doubt that he cannot be entitled to any set-off either against Shyam Sunder or against his sons, for the sale by Baldeo Narain in favour of Shyam Sunder was a good and genuine sale. On this point, there is not much room for argument, inasmuch as it was held on 26th August 1933 that the sale was a genuine sale. This was again held in the regular suit No. 102 of 1926. After this distinct finding in favour of Shyam Sunder and his sons, it is too late in the day for Lala Manmohan Das to agitate this point again. Whatever claim he might have had against Baldeo Narain, he can have no such claim against the transferee on the finding that the transfer was a good transfer. It is true that the principle of constructive res judicata does not apply to execution proceed-ings, but it is not a case of constructive res judicata. It is a case where there was a definite point raised and a definite finding recorded by the learned Subordinate Judge. This proposition of law is too well-established to need any reinforcement by reference to authorities. If one were needed, it is to be found in Genda Lal v. Hazari Lal : AIR1936All21 . A somewhat feeble attempt was made by the learned Counsel for the appellant to prove that the application for execution was barred by time. The learned Civil Judge has given convincing reasons for holding that it was not so and no serious attempt was made before us to displace his finding. No other point has been raised before us in argument. We must, therefore, accept the finding of the learned Civil Judge and dismiss this appeal with costs including fees on the higher scale.


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