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Souti Raghubar Dayal Vs. Seth Amba Prasad and ors. - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtAllahabad
Decided On
Reported inAIR1938All390
AppellantSouti Raghubar Dayal
RespondentSeth Amba Prasad and ors.
Excerpt:
- - thereafter the respondent brought a suit for sale on foot of his mortgage and impleaded the appellant as well as lachhmi narain as an attaching creditor......mortgaged, took place in execution of lachhmi narain's money decree and it was purchased by musammat shivanandi, who happens to be the appellant's daughter. the respondent subsequently applied for the preparation of a final mortgage decree and made musammat shivanandi also a party to his application, and a final decree was passed on 22nd march 1930. by the time the final decree was passed, musammat shivanandi had died and musammat gopi had been brought on the record as the heir of musammat shivanandi. this mortgage decree was put into execution and the house property which had been purchased by musammat shivanandi was sold on 18th september 1935, and while the sale was awaiting confirmation, the appellant on 7th january 1936 filed an application before the collector under section.....
Judgment:

Verma, J.

1. This appeal arises out of proceedings under the U.P. Encumbered Estates Act. The facts briefly are these : The appellant had executed a simple mortgage in favour of the respondent. Subsequently one Lachhmi Narain obtained a money decree against the appellant and in execution of that decree attached the mortgaged property. Thereafter the respondent brought a suit for sale on foot of his mortgage and impleaded the appellant as well as Lachhmi Narain as an attaching creditor. A preliminary decree was passed on 8th July 1929. Some time later, a sale of certain house property, which was part of the property mortgaged, took place in execution of Lachhmi Narain's money decree and it was purchased by Musammat Shivanandi, who happens to be the appellant's daughter. The respondent subsequently applied for the preparation of a final mortgage decree and made Musammat Shivanandi also a party to his application, and a final decree was passed on 22nd March 1930. By the time the final decree was passed, Musammat Shivanandi had died and Musammat Gopi had been brought on the record as the heir of Musammat Shivanandi. This mortgage decree was put into execution and the house property which had been purchased by Musammat Shivanandi was sold on 18th September 1935, and while the sale was awaiting confirmation, the appellant on 7th January 1936 filed an application before the Collector under Section 4, U.P. Encumbered Estates Act and the Collector passed an order under Section 6 of the Act on 11th January 1936. Thereupon the appellant filed an application in the Court below on 23rd January 1936 praying that action be taken under Section 7 of that Act. The Court below has dismissed that application by its order dated 30th January 1936, and this appeal is directed against that order.

2. The contention of the appellant is that the Collector having passed an order under Section 6, the Court was bound to take action under Section 7 of the Act, as the proceedings that were pending at the date of the said order were proceedings in respect of a debt with which his immovable property is encumbered, as required by Section 7(1)(a) of that Act. The learned Counsel refers to the definition of 'debt' as given in Section 2(a) and to Section 9(5) and contends that as the immovable property of the appellant is encumbered with this debt the provisions of Section 7(1)(a) have to be followed even though some property which has been purchased by another person is also encumbered by that debt. Reliance has been placed on the case in Babu Ram v. Manohar Lal : AIR1938All6 . That appears to have been a case of a simple money decree, but we consider that the reasoning on which that decision is based will apply to the case of a mortgage decree also. The language used by the Legislature in Section 7 is very wide and it seems to us that in view of the language used, the Court below was bound to grant the appellant's application under Section 7. Mr. Panna Lal on behalf of the respondent has argued that as the proceedings which were pending in the Court below were not in respect of the property which belongs to the appellant the section was not applicable. The section, however, does not say that the proceedings have to be in respect of the property of the applicant but speaks of proceedings in respect of a debt with which his property is encumbered. We see no justification for introducing into the section words which are not there. We may point out that the result of the appellant's application under Section 7 being granted will be that apportionment of the liability of the house property purchased by Mt. Shivanandi will have to be made under the provisions of Section 9(5) of the Act by the Special Judge if and when a proper application under Section 9(5) is made. Thereafter the decree-holder will be entitled to proceed against the property purchased [by Mt. Shivnandi for the realisation of the amount declared to be realizable from that property. For the remainder of the debt, the proceedings laid down in the subsequent Sections of the Act will have to be taken. For the reasons given above, we allow this appeal, set aside the order of the Court below and send the case back to that Court with the direction that it shall re-admit it to its original number and shall proceed according to law. The parties shall bear their own costs of this appeal.


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