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PATNA HIGH COURT
V.Ramaswami, K.Sahai and Kanhaiya Singh JJ.
Sidheshwar Prasad Singh
Versus
Ram Saroop Singh
A.F.A.O. No. 110 of 1961 ;
Appeal From Appellate Decree No. 516 of 1961 ;
Decided On : MAY 16, 1963
Whether the previous decision of the Full Bench in the case of Mahanth Sukhdeo Das, 1958 BLJR 559: (AIR 1958 Pat 630), that Sec. 4(d) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as the Bihar Act) does not operate as a bar to a suit or proceeding to recover money secured by a mortgage of charge on an estate or tenure by sale of the Bakasht lands comprised in such an estate or tenure after such estate or tenure has vested in the State of Bihar has been overruled by the Supreme Court in the case of Krishna Prasad, AIR 1962 S C 1464.
Fact of the Case:
The respondents instituted a suit in the Court of the Subordinate Judge, Gaya, to enforce six mortgages in respect of proprietary shares in village Dharnai Madanpur, tauzi No. 3739 which included bakasht lands also. The suit was decreed on contest and a preliminary decree was passed on 15-11-1951. Against that decree, the appellants preferred on 20-3-1952 a First Appeal in this Court numbered as First Appeal 87 of 1952. During the pendency of this appeal, the preliminary decree was made final on 1-8-1953. On 23-9-1953, the respondents presented an application for execution of the final decree, numbered as Execution Case 11 of 1953. In the meantime, the Bihar Act, came into force, and by virtue of a notification published under Sec.3-A of the Bihar Act, the instant estate passed to and became vested in the State on 26-1-1955. On 25-7-1955, the decree holders respondents filed an application under Sec.14 of the Bihar Act, notifying their claim to the Claims Officer for the purpose of determining the amount legally and justly payable to them in respect of these mortgages. In view of their lodging this claim, they did not prosecute Execution Case No 11 of 1953, which was eventually dismissed for default on 27-9-1955. But it seems that later they changed their mind and took no steps in the Claim case under Section 14 of the Bihar Act, and, in consequence, it was dismissed for default on 5-12-1956. During all this time, First Appeal No. 87 of 1952 remained pending, and ultimately by an order of this Court dated 12-5-1959, it was dropped. Thereafter, the decree-holders respondents levied a second execution on 29-7-1959 for recovery of the mortgage debt by sale, not of the milkiat interest which, having vested in the State, was no longer available, but of the bakasht land comprised in the said milkiat.
Finding of the Court:
The Full Bench decision in Mahanth Sukhdeo Dass case, AIR 1958 Pat 630 cannot, in view of the two Supreme Court decisions mentioned above, be considered to be good law.
Issues: Whether the previous decision of the Full Bench in the case of Mahanth Sukhdeo Das, 1958 BLJR 559: (AIR 1958 Pat 630), that Sec. 4(d) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as the Bihar Act) does not operate as a bar to a suit or proceeding to recover money secured by a mortgage of charge on an estate or tenure by sale of the Bakasht lands comprised in such an estate or tenure after such estate or tenure has vested in the State of Bihar has been overruled by the Supreme Court in the case of Krishna Prasad, AIR 1962 S C 1464.
Ratio Decidendi: The scheme of Chapter IV which consists of Sections 14 to 18 clearly 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 whole of the property mortgaged 13 an estate, there can he no doubt that the procedure prescribed by Chapter IV 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: Miscellaneous Appeal No. 110 of 1961 and dismiss Second Appeal No. 516 of 1961 with costs.
Kanhaiya Singh, J.
1. These two appeals have been heard analogously, as common question of law is involved, but the facts, being different, have to be stated separately. Miscellaneous Appeal 110 of 1961.
2. The respondents instituted a suit in the Court of the Subordinate Judge, Gaya, to enforce six mortgages in respect of proprietary shares in village Dharnai Madanpur, tauzi No. 3739 which included bakasht lands also. The suit was decreed on contest and a preliminary decree was passed on 15-11-1951. Against that decree, the appellants preferred on 20-3-1952 a First Appeal in this Court numbered as First Appeal 87 of 1952. During the pendency of this appeal, the preliminary decree was made final on 1-8-1953. On 23-9-1953, the respondents presented an application for execution of the final decree, numbered as Execution Case 11 of 1953. In the meantime, the Bihar Land Reforms Act, 1950 (hereinafter referred to as the Bihar Act), came into force, and by virtue of a notification published under Sec.3-A of the Bihar Act, the instant estate passed to and became vested in the State on 26-1-1955. On 25-7-1955, the decree holders respondents filed an application under Sec.14 of the Bihar Act, notifying their claim to the Claims Officer for the purpose of determining the amount legally and justly payable to them in respect of these mortgages. In view of their lodging this claim, they did not prosecute Execution Case No 11 of 1953, which was eventually dismissed for default on 27-9-1955. But it seems that later they changed their mind and took no steps in the Claim case under Section 14 of the Bihar Act, and, in consequence, it was dismissed for default on 5-12-1956. During all this time, First Appeal No. 87 of 1952 remained pending, and ultimately by an order of this Court dated 12-5-1959, it was dropped. Thereafter, the decree-holders respondents levied a second execution on 29-7-1959 for recovery of the mortgage debt by sale, not of the milkiat interest which, having vested in the State, was no longer available, but of the bakasht land comprised in the said milkiat.
3. One of the judgment-debtors, Sidheshwai Prasad Singh, the appellant before us, filed an application under Sections 47 and 151 of the Code of Civil Procedure objecting to the execution of the decree, on the ground, first, that the execution was barred by limitation under Article 182 (21 of the Limitation Act and also under Sec. 4 (d) of the Bihar Act; and, second, that having proceeded under Sec.14 of the Bihar Act, they were precluded from executing the mortgage decree in Civil Court. The other objections raised by the appellant are not material for the present purpose.
4. The learned Subordinate Judge held that the execution was not barred under Clause (2) of Article 18 of the Limitation Act, and that, since they first elected to pursue their remedy in Civil Court, the subsequent preferring of a claim under Sec.14 of the Bihar Act did not preclude the decree-holders from executing the decree in a Civil Court. He accordingly dismissed the miscellaneous case and allowed the execution to proceed.
5. On appeal, relying upon the decision of a Full Bench of this Court in Mahanth Sukhdeo Das V/s. Kashi Prasad Tewari, 1958 BLJR 559 : (AIR 1958 Pat 630), the learned Additional District Judge held that the bakasht lands could be proceeded against to recover the mortgage debt. He also found against the appellant on the question of limitation also. He, however added that the determination of the value of the property to be sold under Sec.13 of the Bihar Money-Lenders Act was imperative. With this modification, he affirmed the decision of the Subordinate Judge. It is against that order that the present appeal has been filed.
6. This appeal was first placed before a Single Judge of this Court. The learned Judge thought that the subsequent decision of the Supreme Court in Krishna Prasad V/s. Gouri Kumari Devi, AIR 1962 S C 1464, affirming the decision of this Court in Sm. Gau
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