S. 4(d) of the Bihar Land Reforms Act, 1950 (Act 30 of 1950) (Act) bars the execution of a personal decree against a mortgagor whose mortgaged property has vested in the State under the Act.

Headnote:
BIHAR LAND REFORMS ACT, 1950 - S. 4(d) - Scope and effect - Execution of personal decree against mortgagor - Bar - Mortgagee decree-holder entitled to claim payment of mortgage-money out of compensation amount payable to mortgagor under S. 24(5) - Decree-holder must first seek remedy from compensation amount before proceeding against non-mortgaged property of mortgagor.
Fact of the Case:

Respondent mortgaged her Zamindari property and khudkasht land to appellants in 1937. Appellants obtained a decree against respondent in 1946, allowing them to sell the mortgaged properties to satisfy the decretal amount. In 1952, appellants filed an Execution Case to recover the decretal amount by sale of the mortgaged Zamindari properties, but respondent objected on the ground that the properties had vested in the State under the Bihar Land Reforms Act, 1950 (Act 30 of 1950) (Act). The Execution Case was dismissed in 1954. Appellants then transferred the decree for execution to Gaya Court and sought to recover the decretal amount by attachment and sale of respondent's other properties. Respondent filed an objection under S. 47 of the Code of Civil Procedure (CPC), arguing that appellants had not obtained a personal decree against her. The Executing Court allowed appellants' application for review and held that they had obtained a personal decree against respondent. Respondent challenged this order in the Patna High Court, which held that appellants had no right to execute the personal decree by proceeding to sell respondent's other properties, as S. 4(d) of the Act constituted a bar against such proceedings.
Finding of the Court:

The High Court was right in holding that the appellants' application for execution at the present stage is incompetent in view of the provisions of S. 4(d) of the Act.
Issues: Whether S. 4(d) of the Bihar Land Reforms Act, 1950 (Act 30 of 1950) (Act) bars the execution of a personal decree against a mortgagor whose mortgaged property has vested in the State under the Act.
Ratio Decidendi: S. 4(d) of the Act bars all suits and proceedings for the recovery of any money due from a proprietor or tenure-holder whose estate or tenure has vested in the State, including execution proceedings. The scheme of the Act is that all claims based on mortgages relating to estates have to be submitted to the Claims Officer and the amounts due to the creditors have to be determined in accordance with the principles laid down by the Act. Where the whole of the mortgaged property is an estate, the procedure prescribed by Chapter IV of the Act has to be followed in order that the amount due to the creditor should be determined by the Claims Officer. The decision of the Claims Officer or the Board has been made final by the Act.
Final Decision: Appeal dismissed.

Judgment

GAJENDRAGADKAR, J. : This appeal has been brought to this Court with a certificate issued by the Patna High Court and it raises a short question about the scope and effect of the provisions of S. 4(d) of the Bihar Land Reforms Act, 1950 (30 of 1950) (hereinafter called the Act) The respondent Smt. Gouri Kumari Devi along with her husband, Babu Shyamakant Lal, executed a registered anomalous mortgage in favour of the appellants Babu Krishna Prasad and his three sons on July 10, 1937, for a sum of Rs. 35,000. The document evidenced a combination of Sudharna as well as simple mortgage and the period specified in it was five years. The respondent was the principal mortgagor and by the mortgage deed she mortgaged 10 annas and 8 pies Hakiat Milkiat of village Sonchari Mouza No. 11912 in the district of Patna which was the Zamindari property and 16.41 acres of khudkasht land appertaining to Khata No. 3 of the said Mouza.

2. The appellants sued on this mortgage to recover Rs. 69,816-5-17 in the court of the Sub-Judge at Patna. The said suit ended in a decree in favour of the appellants on the 26th August, 1946. The trial Judge ordered that for the satisfaction of the decretal amount, "the mortgaged properties would be charged preliminary and if the decretal amount is not fully satisfied from them, then alone the respondent would be personally liable for the satisfaction of the balance, if any." That is how a composite decree came to be passed in the suit. By the final decree which followed on September 30, 1947, the respondent s liability to pay Rs. 52,950-3-0 was determined.

3. The appellants then filed an Execution Case No. 6 of 1952 and claimed that the decretal amount should be realised by sale of the mortgaged Zamindari properties. The respondent raised an objection against the appellants claim on the ground that the mortgaged properties had in the meanwhile vested in the State of Bihar under the provisions of the Act and so, they were not liable to sale in execution proceedings as the respondent had ceased to have any interest in them. Ultimately, the Execution Case filed by the appellants was dismissed on January 9, 1954.

4. When the respondent contested the Execution Case on the ground that the mortgaged properties had vested in the State of Bihar, the appellants applied for transfer of their decree for execution to the Gaya Court. They intimated to the Court that they wanted to execute the decree against the respondent by proceeding against her properties other than those which were the subject-matter of the mortgage and they alleged that they were entitled so to do by reason of the personal decree which had been passed against her. The application made by the appellants for the transfer of the decree was granted and the decree was transferred on January 22, 1954 with a certificate of non-satisfaction.

5. The appellants then filed Execution Case No. 19 of 1954 in the Court of the Subordinate Judge at Gaya and sought to recover the decretal amount by attachment and sale of other properties belonging to the respondent. In these proceedings, the respondent filed an objection under S. 47 of the Code and it was numbered as Misc. Case No. 96 of 1954. She urged that the appellants had not obtained a personal decree against her and so, the claim made by them in their Execution Case was not maintainable. She also contended that the appellants could not proceed against her other properties because their remedy was to follow the compensation money which would be given by the State of Bihar to her in lieu of her properties which had vested in the said State.

6. It appears that on December 23, 1954, the Misc. Case No. 96 of 1954 filed by the respondent was allowed ex parte by the Sub-Judge at Gaya and, in consequence, the Execution Case No. 19 of 1954 filed by the appellants was dismissed. The appellants then applied for review of the said order and prayed that their Execution Case should be restored to file and should be dealt with

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1962 Supreme(SC) 89

S. 4(d) of the Bihar Land Reforms Act, 1950 (Act 30 of 1950) (Act) bars the execution of a personal decree against a mortgagor whose mortgaged property has vested in the State under the Act.

Cases Referred (1)