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Abdul Hameed Sait (Died) by L.Rs. Vs. Rajagopala Pandarathar (Died) by L.Rs. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1968)2MLJ604
AppellantAbdul Hameed Sait (Died) by L.Rs.
RespondentRajagopala Pandarathar (Died) by L.Rs. and ors.
Cases ReferredKrishna Prasad v. Gouri Kumari Devi
Excerpt:
.....properties, the decree-holder could apply for a personal decree against the judgment-debtor. that covers all the three points raised on behalf of the appellant which we accept as..........down its consequences. one of the consequences is that on and from the notified date, the entire estate notified vests in the government absolutely and free of all encumbrances. a further consequence which follows from the first may be mentioned, that all rights and interests created in or over the estate before the notified date by the principal or any other landholder should as against the government cease and determine. there are provisions which regulate computation and payment of compensation for the estate notified and taken over. section 41 provides for deposit and apportionment of the compensation. on making such deposit, the government shall be deemed to have been completely discharged in respect of all claims to, or enforceable against, the compensation. provision is made by.....
Judgment:

K. Veeraswami, J.

1. This is a plaintiff's appeal directed against an order of the Subordinate Judge of Thanjavur dismissing his application for a personal decree against the first defendant. Pending the appeal, the first defendant died and his legal representatives have been brought on record. The suit was instituted in 1940 to enforce a mortgage that had been executed by the first defendant on three villages in Gandarvakottai Zamindari. On 2Oth August, 1941) a preliminary decree was passed for Rs. 86,302-6-8. A final decree followed on 9th November, 1943. In 1949 the last execution application was taken out which was disposed of by a final order, dated 6th January, 1950. On 3rd January, 1951, the three villages, which formed the security under the mortgage, were notified as an estate and taken over with effect from that date under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. On 27th June, 1951, advance compensation in a sum of Rs. 6,793 was deposited with the Estates Abolition Tribunal, West Thanjavur, under Section 54-A of the Act. The plaintiff applied on 7th September, 1951, under Section 42 for payment out of the compensation to him. There were rival claims made by the two junior wives of the mortgagor. By an order dated 19th November, 1952, the Tribunal apportioned the compensation as between the plaintiff on the one hand and the two defendants on the other. But the plaintiff got only a sum of Rs. 5,437. Dissatisfied with the apportionment, all the three claimants preferred separate appeals to this Court which were all dismissed by a common judgment on 5th December, 1956. On 1st August, 1958, the plaintiff applied under Order 34, Rule 6 of the Code of Civil Procedure, for a personal decree, out of which, as we said, the present appeal arises. To complete the narration, the final compensation payable by the Government was deposited with the Tribunal on 24th June, 1958.

2. The Subordinate Judge dismissed the application for a personal decree on the view that it was out of time. He thought that, on a construction of a memorandum filed by the plaintiff before the Tribunal on 25th August, 1952, he gave up his security and was prepared to receive repayment from the compensation deposited on the footing that he was an unsecured creditor, and that, therefore, the cause of action for applying for a personal decree arose then. According to the learned Judge, under Article 181 of the Limitation Act, the application was barred because the right to apply accrued on 25th August, 1952 itself.

3. Learned Counsel for the appellant argues that the view of the Tribunal is erroneous. He says (1) that the memorandum referred to by the Subordinate Judge does not lend itself to the construction he placed on it, (2) that on a reference to relative statutory provisions, the application for personal decree was not out of time, and (3) that in any case, as the plaintiff has not given up his security and as the final compensation deposited on 24th June, 1958 still remains to be apportioned, he cannot be said to have exhausted the substituted security in the form of the compensation and therefore also the Subordinate Judge was wrong in his view that the application was out of time. Before we deal with these contentions seriatim, we will notice the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. Section 2 defines an ' estate ' as meaning a zamindari, and there is no dispute that the villages in question constituted such an estate. Section 3 provides for notification of an estate and lays down its consequences. One of the consequences is that on and from the notified date, the entire estate notified vests in the Government absolutely and free of all encumbrances. A further consequence which follows from the first may be mentioned, that all rights and interests created in or over the estate before the notified date by the principal or any other landholder should as against the Government cease and determine. There are provisions which regulate computation and payment of compensation for the estate notified and taken over. Section 41 provides for deposit and apportionment of the compensation. On making such deposit, the Government shall be deemed to have been completely discharged in respect of all claims to, or enforceable against, the compensation. Provision is made by Section 42 enabling settlement of claims by creditors, both secured and unsecured, and others who have a claim against the landholder. Section 44 (1) in effect deals with priority of payment as between secured and unsecured creditors. The time and manner of depositing advance compensation has been provided by Section 54-A. Having made these provisions, the Act erects certain bar on proceedings. Section 59 (1) is to the effect that no claim or liability enforceable immediately before the notified date against the principal or any other landholder of an estate, or against any other person whose rights stand transferred to the Government in pursuance of Section 3, Clause (b), shall, on or after that date, be enforceable against the interest he had in the estate; and all such claims and liabilities shall after the date on which the deposit in pursuance of Section 54-A is made, be enforceable against the interim payments or the compensation and against his other property, if any, to the same extent to which such claims and liabilities were enforceable against the interim payments or compensation or other property. Sub-section (2) says that no Court shall, on or after the notified date, order or continue execution in respect of any decree or order passed against the principal or any other landholder or any other person aforesaid, against the interest he had in the estate; and execution shall be ordered or continued in such cases in conformity with the provisions of Sub-section (i), only as against the interim payments or against the compensation or other sum or sums paid or payable to him as aforesaid or against his other property if any. One other provision which we have to notice is Section 64-6 which runs:

In computing the period of limitation for any suit or application filed in a civil Court by a creditor in respect of any matter which was the subject of a proceeding under any of the following sections, namely, 42, 43, 44, 45, 46, 48, 49, 50, 51, 54-A and 54-B, the period commencing on the notified date and ending with the date on which the deposit in pursuance of Section 54-A is made, and the time during which such proceedings were pending as well as the time taken for obtaining certified copies of the order passed in such proceeding shall be excluded.

4. The contention for the appellant is that he is entitled to the benefit of Section 64-B. It seems to us that the contention is well-founded. The proceeding under Section 42 came to an end by the order, dated 19th November, 1952, but the appeals arising there out were disposed of by this Court only on 5th December, 1956. Assuming that this was the date on which the plaintiff's cause of action for applying for a personal decree arose, his application filed on 1st August, 1958 being within three years, it would be within time. But we note that the final compensation having been deposited on 24th June, 1958, the plaintiff again applied for payment and the proceedings arising from that are still pending in this Court in the form of appeals. Learned Counsel for the appellant also relied on Section 59 (I) and Krishna Prasad v. Gouri Kumari Devi : AIR1962SC1464 . Section 59 (1) raises a bar to any claim or liability against the landholder being enforced against the interest he had in the estate which by reason of the notification has vested in the State. But the section itself makes it clear that all the same such claim or liability can be enforced, after the date on which the deposit under Section 54-A is made, against interim payments or the compensation or against the other property of the landholder. So too Sub-section (2) of Section 59 only bars an execution against the interest that has vested in the Government by reason of the notification. It, however, allows execution or its continuance in conformity with Sub-section (1) of Section 59. That is to say, execution could be levied against interim payments or compensation or against the property of the landholder owner than the interest vested in the Government as a result of the notification. It may be seen, therefore, that subsequent to the deposit under Section 54-A which was on 27th June, 1951, the plaintiff was at liberty to proceed against the interim payment or compensation or against the other properties of the first defendant. Section 4 (d) of the Bihar Land Reforms Act, which was the subject-matter of Krishna Prasad v. Gouri Kumari Devi : AIR1962SC1464 , was differently worded. That section provided that no suit should lie in any civil Court for recovery of any money due from such proprietor or tenure-holder the payment of which was secured by a mortgage of, or was a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which might be pending on the date of vesting should be dropped. The Supreme Court held on a construction of these provisions that the bar extended also to execution proceedings in which the decree-holder sought to recover from properties other than those which had vested in the State. The other question which this case decided turned on the terms of the preliminary decree which provided that if only the decretal amount was not fully satisfied from the mortgaged properties, the decree-holder could apply for a personal decree against the judgment-debtor. In our opinion, therefore, this decision does not assist the appellant so far as the statutory provisions in the Madras Act go. As we said, the appellant is entitled to the benefit of Section 64-B, for, the appeals arising out of the apportionment order had been disposed of by this Court only on 5th December, 1956, so that the application for a personal decree filed on 1st August, 1958 was within three years, further, when the final compensation was deposited on 24th June, 1958, which is within two years from 5th December, 1956, the appellant is again entitled to the benefit of Section 64-6. As a matter of fact, since the proceedings arising out of the application for apportionment of the final compensation are still pending in the form of appeals in this Court, no question of limitation would at all arise in relation to the application for passing a personal decree.

5. Apart from this aspect, on a construction of the memorandum filed by the appellant before the Tribunal, we are of opinion that the intention of the plaintiff was not thereby to give up his security. No doubt a first look at the language employed by the memorandum may not give that impression. But when the memorandum is looked at in the background of the relative statutory provisions in the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, it is clear to our minds that what the plaintiff meant by the memorandum was that in view of the statutory effect, he would claim to be paid out of the compensation and not from the hypotheca which had been notified and as a result had vested absolutely in the Government free of all encumbrances. The memorandum no doubt has not been happily phrased. But we are of the view that the intention of the plaintiff is unmistakable. There was absolutely no reason why, if the security was available to him, he should give it up. He mentioned in the memorandum that the would pass off as an unsecured creditor because the security was no longer available in its original form. On that construction, the plaintiff could apply for a personal decree only after exhausting his claim against the compensation deposited with the Tribunal. That is the effect of Order 34, Rule 6 of the Code of Civil Procedure. That covers all the three points raised on behalf of the appellant which we accept as well-founded.

6. We may add that one of the claimants contended that the application for passing a personal decree is premature. But it is not on this ground the learned Subordinate Judge dismissed the plaintiff's application. As a matter of fact, the final compensation has also been apportioned and from the relative order, the aggrieved parties including the plaintiff have preferred appeals which are pending here. We are, therefore, not disposed to think that the plaintiff's application is premature.

7. The appeal is allowed with costs, one set.


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