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NaraIn Das and ors. Vs. Alla UddIn Khan and anr. - Court Judgment

LegalCrystal Citation
Subject Property; Civil
CourtAllahabad
Decided On
Reported inAIR1945All401
AppellantNaraIn Das and ors.
RespondentAlla UddIn Khan and anr.
Excerpt:
.....in default of such payments the sales would be deemed to be confirmed. debt redemption act, the decree-holders had recovered more than what was due to them and consequently the decree must be deemed to be satisfied and the decree-holders were not entitled to recover anything more from the judgment-debtors. in the result, the learned civil judge granted the sale certificates to the decree-holders and also declared the decree to have been satisfied. the object of these statutes will be seriously interfered with, if not defeated, by holding that although a new decree can be substituted and a decree can be amended, yet, if the sale had taken place but had not been confirmed, the court has no power to refuse to confirm the sale and the relief granted by the new decree or by the amendment..........1934, three houses and eight shops belonging to the mortgagors were sold and purchased by the decree-holders themselves for a sum of rupees 15,325. on 2lst january 1934, i.e. three days before the auction-sale, an injunction had been issued, at the instance of one mt. nausani begam against the auction-sale and an order was passed by this court at 12 30 p.m. on 24th january 1934, directing the amin not to proceed with the sale. the case of the decree-holders is that the sale took place at 1 p.m. in ignorance of this order. it is difficult to believe this story, but for the purpose of these applications we shall assume that this was so. on 15th november 1934, the injunction issued in favour of mt. nausani begam was discharged and thereafter the remaining property of the mortgagors was.....
Judgment:

Sinha, J.

1. These are two applications for leave to appeal to His Majesty in Council against an order of this Court, dated 3rd May 1944, by which it remanded the case to the Court below with the direction that a certain application, presented by the judgment-debtors, be restored to its original number and tried according to law. The facts briefly are these: On 27th October 1921, Alla Uddin Khan and Sayeed Uddin Khan granted a simple mortgage in favour of Narain Das and others for a sum of Rs. 10,000. The suit was brought on the basis of that mortgage and, on 15th February 1932, a preliminary decree was passed. The final decree followed on 31st July 1933, for a sum of Rs. 26,759-15-0. In execution of this decree, on 24th January 1934, three houses and eight shops belonging to the mortgagors were sold and purchased by the decree-holders themselves for a sum of rupees 15,325. On 2lst January 1934, i.e. three days before the auction-sale, an injunction had been issued, at the instance of one Mt. Nausani Begam against the auction-sale and an order was passed by this Court at 12 30 P.M. on 24th January 1934, directing the Amin not to proceed with the sale. The case of the decree-holders is that the sale took place at 1 P.M. in ignorance of this order. It is difficult to believe this story, but for the purpose of these applications we shall assume that this was so. On 15th November 1934, the injunction issued in favour of Mt. Nausani Begam was discharged and thereafter the remaining property of the mortgagors was sold on 11th May 1935, and was purchased again by the decree-holders themselves for a sum of Rs. 5,600.

2. An application under Order 21, Rule 90, Civil P.C., was presented by the judgment-debtors for setting aside the sale on the ground, inter-alia, that the sale had taken place after an injunction prohibiting the sale had been issued and an application was 'also made by them for the amendment of the decree and for certain other reliefs under the U.P. Agriculturists' Relief Act (Act 27 of 1934). The story of the judgment-debtors that the auction-sale had been made not in ignorance of the order, but in spite of it, was not absolutely devoid of truth. They, however, did not pursue the matter further, but entered into a compromise with the decree-holders on 24th August 1935, which provided that, on payment of a sum Rs. 25,500 in certain specified instalments within six months, the sales of 24th January and 11th May 1935, would be vacated and the decree would be deemed to be satisfied, but in default of such payments the sales would be deemed to be confirmed. There was the usual default. But before the expiry of six months the mortgagors made an application under Section 4, U.P. Encumbered Estates Act, which was, in due course, transmitted to the Special Judge, 1st grade, Pilibhit. During the pendency of this application, an application was made by the mortgagees for the confirmation of the sales and for grant of sale certificates. The Special Judge held that the application under the Encumbered Estates Act was not maintainable and by an order, dated 3lst July 1936, he, acting as a Civil Judge, confirmed the sales and granted sale certificates. The High Court by its order of 23rd August 1937, set aside this order on the ground that the Special Judge had no jurisdiction to disallow the application under Section 4, Encumbered Estates Act and during the pendency of the proceedings under this Act he had no jurisdiction to confirm the sales or to grant certificates. The proceedings under the Encumbered Estates Act were finally quashed by the Collector, but before any order could be passed by him the Stay of Execution of Decrees Act had come into force and by virtue of the operation of that Act the proceedings in relation to execution of the decree or the confirmation of the sale remained in abeyance till December 1940, when the Act ceased to be in operation.

3. On 7th January 1941, an application was made by the decree-holders to revive their previous application for confirmation of the sales and for grant of certificates and during the pendency of this application, an application was also made by the -judgment-debtors on 17th March 1941, for amendment of the decree under Section 8, U.P. Debt Redemption Act. The decree-holders contended that there was default on the part of the judgment-debtors in carrying out the terms of the compromise of 24th August 1935, and on the expiry of the period provided, the auction sales should be deemed to have been automatically confirmed. The judgment-debtors, on the other hand, contended that they were entitled to an amendment under Section 8, U.P. Debt Redemption Act, notwithstanding the terms of the decree. The learned Civil Judge found that the judgment-debtors were agriculturists within the meaning of the U.P. Debt Redemption Act and that the declaration given by the decree-holders was ineffective against them and they were entitled to the amendment of the decree. He also found that one of the sales was irregularly held at a time when an injunction was outstanding against the sale of the property, but any irregularity about the sale was cured by the subsequent compromise between the parties and in terms of the compromise the sale had to be confirmed. Finally, he found that as a result of the auction sales the decree-holders should be deemed to have received Rs. 20,925 and as this amount exceeded the sum which would have been due to the decree-holders under the decree after the amendment in accordance with the provisions of the U.P. Debt Redemption Act, the decree-holders had recovered more than what was due to them and consequently the decree must be deemed to be satisfied and the decree-holders were not entitled to recover anything more from the judgment-debtors. But, at the same time, as no refund could be ordered against the decree-holders for any excess realisation, he did not grant the judgment-debtors' prayer for the amendment of the decree. In the result, the learned Civil Judge granted the sale certificates to the decree-holders and also declared the decree to have been satisfied. The judgment-debtors preferred two appeals to this Court. The sole question which invited the consideration of this Court was whether, under the terms of the compromise in the event of default and on the expiry of the period provided, the auction-sales must be deemed to have been automatically confirmed or an order of confirmation of sales was necessary. This Court held that an express order of confirmation was a condition precedent to the confirmation of the sales even though the decree was based upon a compromise. In this view of this case, the judgment-debtors were entitled to the benefit available to them under Section 8, U.P. Debt Redemption Act, and to an ascertainment by the Court of the amount due to the decree-holders under the amended decree. In summing up its conclusions this Court observed as below :.

The U.P. Agriculturists' Belief Act and the U.P. Debt Redemption Act have been enacted to relieve agricultural indebtedness and drastic provisions have been introduced in these statutes interfering with the contract between the parties in order to grant relief to agriculturist judgment, debtors. The object of these statutes will be seriously interfered with, if not defeated, by holding that although a new decree can be substituted and a decree can be amended, yet, if the sale had taken place but had not been confirmed, the Court has no power to refuse to confirm the sale and the relief granted by the new decree or by the amendment of the decree should remain ineffective. Whatever may have been the legal position before the debt legislation we are of opinion that if a decree is amended under the provisions of the debt legislation which has been enacted for the relief of the agriculturist, it should be open to the Court in a proper case to refuse to confirm the sale on grounds other than those specified in Order 21, Rule 92, Civil P.C.

And, finally, this Court sent the case back to the Court below with the direction that the application of the judgment-debtors under Section 8, U.P. Debt Redemption Act, be restored to its original number and the amount duo to the decree-holders under Section 8, U.P. Debt Redemption Act, be ascertained and the decree be amended and after the decree has thus been amended, execution should proceed in due course of law. There are two questions which really fall for consideration. In the first place, is it a final order, finally deter-mining the rights of the parties in the sense that the execution is no longer a live execution? Assuming that the order answers this test, has the matter been settled by any judicial pronouncements of their Lordships of the Privy Council? If the' answer is in the affirmative, the applicants are not entitled to leave, because the matter will then cease to involve a substantial question of law of general importance. Section 109 (a) or Section 110, Civil P.C., has, as a result of judicial pronouncements, no application to the present case. It must stand or fall on an interpretation of Section 109 (C). The applications have been headed as applications under both the provisions of law. The learned Counsel for the applicants has strenuously contended that in so far as the auction-sales have been set aside, there is a final adjudication upon the rights of the parties, and he takes his stand principally on Krishna Pershad Singh v. Moti Chand ('13) 40 Cal. 635 and Rahimbhoy Habibbhoy v. C, A. Turner ('91) 15 Bom. 155. The case in Krishna Pershad Singh v. Moti Chand ('13) 40 Cal. 635 is undoubtedly in favour of the applicants as far as it goes, but it does not go the whole length of their contention. That was a case where a judgment-debtor had prayed for the setting aside of the sale and the trial Court had acceded to his prayer, but the High Court, on appeal, took different view. The auction-sale was vitiated, according to the judgment of their Lordships of the Judicial Committee, by grave irregularities which had caused prejudice to the rights of the minor. This was obviously the main consideration which weighed with their Lordships. And, beyond the auction-sale-which was either to be set aside or confirmed-there was nothing else to be done. To this aspect of the matter we shall advert presently. The ratio underlying Rahimbhoy Habibbhoy v. C.A. Turner ('91) 15 Bom. 155 is also the same. The case in Kishan Chand v. Lachmi Chand : AIR1933All15 has also been relied upon. That case is only authority for the proposition that

a final order within the meaning of Section 109, Civil P.C. need not be a final order passed in the suit itself, but may be a final order in any other proceeding or case arising subsequent to the suit.

4. The learned Counsel for the opposite party has, however, taken his stand upon Abdul Rahman v. Cassim & Sons . The facts briefly were these: The plaintiffs brought a suit against two defendants on the original side of the Rangoon High Court for recovery of Rs. 5,00,000. After the commencement of the hearing the plaintiffs were adjudicated insolvents. On 13th February 1929, the Court adjourned the trial and gave a month's time to the official assignee to consider whether he would proceed with the suit on behalf of the creditors. After some adjournment, on 24th April, the counsel for the official assignee stated that 'he had asked the insolvents to furnish him with security, but they had failed to do so.' The suit was dismissed on 29th April. The decree was headed as in a suit between the official assignee, as assignee of the estate of the plaintiffs, and the defendants, but despite this fact and the amendment of the plaint above referred to, the plaintiffs seemed to have been treated as still parties to the proceedings, the official assignee disappearing from the stage altogether. The plaintiffs were given leave to appeal against the decree as paupers; their appeal was heard; the decree was set aside, and the suit was remanded to the original Court for trial on the merits. Against this order the defendants went in appeal to His Majesty in Council.

5. Two questions were raised before their Lordships. The first was whether the order was a final order; secondly, whether Section 110, Civil P.C. kad any application. It must be borne in mind that the question whether the plaintiffs had made out a case for setting aside the dismissal of the suit had been finally settled by the High Court. But still their Lordships held that inasmuch as the order was one of remand, there was no final order within the meaning of the law and the suit, despite the order, was 'still a live suit.' The principle of the above case was explained in Iqbal Bahadur v. Mt. Ram Sree : AIR1934All58 . We have thus to see whether the case answers the test laid down by their Lordships. The application for execution remains a subsisting application and the execution remains pending. In other words, the proceedings which have given rise to the present applications, still remain live proceedings. The case, therefore, does not fulfil the requirements of Section 109 (a) or of Section 110, Civil P.C. It remains to consider whether it is, within the dictum of their Lordships, 'a proper case' in which a special certificate under Section 109 (c), Civil P.C., should be granted. That the U.P. Debt Redemption Act and the Agriculturists' Relief Act are Acts intended for the amelioration of the lot of the peasantry, there can be no doubt. There can be equally no doubt that the U.P. Encumbered Estates Act, aims at the same purpose, though for a slightly different class of people, viz., the landlords. Whatever doubts might have, on this point, existed at one time, they have been set at rest by a very recent pronouncement of their Lordships of the Privy Council, Raghuraj Singh v. Hari Kishan Das . Say their Lordships:

The words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the Class intended. to be relieved.

The principle was followed by this Court in Surya Pal Singh v. Chiranji : AIR1944All170 . The Privy Council case can be read with profit not only for the general principle laid down by their Lordships, but also for its facts which bear a family likeness to the facts of the present case. On 4th July 1933, a compromise decree was passed in a mortgage suit. The material terms were as below : (a) A final decree for sale, as sought for, for Rs. 3,88,300-2-6 be passed; (b) For the satisfaction of the decree the mortgagor shall execute in favour of the mortgagee a sale deed in respect of some villages which will be selected by the mortgagee and within one week he shall complete the sale deed and the mortgagee shall get it executed; (c) From the date of the sale deed the mortgagor shall deliver to the mortgagee possession of the property sold and shall cause the mutation of names to be effected. On 26th May 1934 the creditor applied for execution. The application was resisted and, before the execution proceedings had been determined, on 27th April 1935, there came into force the U.P. Agriculturists' Belief Act of 1934 and on 23rd July 1935, the debtor applied for relief under that Act. The Subordinate Judge gave relief. The Chief Court at Luoknow held that, once the rights of the parties had been determined by the compromise, no such relief could be granted. Their Lordships repelled the contention of the decree-holder and held that.as the operation of a Relief Act is one of general importance it may be as well to point out that the object of all such Acts is to give relief from agreements made by the applicants whether under the laws relating to usury or otherwise, and that it cannot in ordinary circumstances be an objection to relief that the applicant is seeking to resile from the very agreement against which the law has expressly said he may be relieved.

6. Their Lordships based their judgment upon the opening words of Section 5, Agriculturists' Relief Act : 'Notwithstanding anything contained in the Code of Civil Procedure.' Section 8, Debt Redemption Act, is equally, if not more, emphatic, 'Notwithstanding the provisions of any decree or of any law for the time being in force.' We are, therefore, of opinion that the compromise decree constitutes no bar to the prayer of the judgment-debtors for a relief under Section 8, Debt Redemption Act. The last word has been said by their Lordships of the Judicial Committee and no useful purpose will be served by permitting the applicants to re-agitate this matter before them. The applications, therefore, fail on all grounds. They cannot be entertained under Section 110, Civil P.C. They are not entertainable under Section 109 (a). They have no merits under Section 109 (c). We, therefore, dismiss both these applications with costs.


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