Judgement

Consolidated Appeal (No. 35 of 1942), by special leave, from a decree of the High Court (October 12, 1938), which had set aside an order made in execution proceedings by the Civil Judge of Allahabad (October 10, 1936) and had directed that execution of a partition decree, dated February 25, 1926, should proceed.

The following facts are taken from the judgment of the Judicial Committee This appeal arose out of execution proceedings taken to enforce a partition decree, dated February 25, 1926. The decree, which was based on an award, dated November 30, 1925, directed the members of one branch of a Hindu family to pay to the respondent Shiva Prasad, who represented another branch, the sum of Rs. 13,68,358 for the purpose of equalizing the values of the allotted shares. The

Law. Rep. 70 Ind. App. 209 ( 1942- 1943)

Babu Jyoti Bhushan V. Babu Shiva Prasad Gupta 104

question was whether the sum still due and unpaid in respect of that obligation was a " debt " within the meaning of the United Provinces Encumbered Estates Act, 1934 (United Provinces Acts XXV. of 1934 and IV. of 1935), herein referred to as "the Act” or whether, as held by the High Court, the Act had no application thereto. Sect. 2 of the Act was a definition section in the sense indicated by its opening words, and the first of a number of words and phrases therein defined or explained was the word "debt " "2. In "this Act, unless there is anything repugnant in the subject or "context (a) debt includes any pecuniary liability except " a liability for unliquidated damages, . . . ."

The branch whose members became by the partition decree judgment-debtors for the money now sought to be recovered was represented by the appellants Jyoti Bhushan and Gokul Chand together with their sons and grandsons. Those two families were, however, divided since 1934. On February 3, 1934, the respondent Shiva Prasad applied to the Civil Judge of Allahabad for execution of the partition decree against the appellants, and obtained an order for the attachment and sale of a house at Allahabad, and for the issue of transfer certificates to other courts in the Province—at Benares, Jaunpur and Gonda and also to a court at Calcutta. On October 5, 1936, Gokul Chand and his descendants applied to the Collector of Benares under s. 4 of the Act requesting that the provisions thereof be applied to him, and the Collector duly forwarded the application to the Special Judge pursuant to s. 6. On October 9 application was made by the same parties to the Civil Judge of Allahabad for a stay of the execution proceedings and recall of the transfer certificates; and on October 10 an order was made by the Civil Judge to that effect. On October 21 the appellant Jyoti Bhushan also applied to the Collector of Benares for the benefit of the Act, and the Collector forwarded his application also to the Special Judge as required by s. 6.

In that state of the proceedings the respondent Shiva Prasad, on February 19, 1937, applied to the High Court of Allahabad to set aside or vary the order of the Civil Judge dated October 10, 1936, staying the execution proceedings and recalling the transfer certificates. For some reason that application was made in revision under s. 115 of the Code, but it was treated as an appeal and was referred to a Full Bench. On October 12, 1938, Bennet, Ismail, and Verma JJ. allowed the appeal and directed that execution should proceed. In their joint judgment they said "We do not think that the "Act was intended at all to apply to the subject of partition "among the members of a joint family, and accordingly in "our opinion the subject is one which is repugnant to the "definition of the word debt in s. 2 (a) of the Act" (1). Hence in their view "the present Act does not apply the word " debt to the present case." The learned judges pointed out that under the Act the to decreed in the present case would come in the last of the six classes mentioned by s. 16, being merely an unsecured debt;