1962 (3) TMI 131 - SC - Indian Laws

Summary

Issues Involved:
1. Scope and effect of Section 4(d) of the Bihar Land Reform Act, 1950.
2. Validity of the personal decree against the respondent.
3. Execution of the decree against non-mortgaged properties.
4. Competence of the appellants' application for review.
5. Determination of the amount due to the appellants under the mortgage decree.

Issue-wise Detailed Analysis:

1. Scope and Effect of Section 4(d) of the Bihar Land Reform Act, 1950:
The primary issue in this case is the interpretation of Section 4(d) of the Bihar Land Reform Act, 1950. Section 4(d) states that no suit shall lie in any Civil Court for the recovery of any money due from a proprietor or tenure-holder, the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure. The Supreme Court emphasized that the literal and grammatical meaning of Section 4(d) should be applied. The Court held that the bar created by Section 4(d) applies to execution proceedings for the recovery of money due from the proprietor on the strength of a mortgage executed by him in respect of an estate. Thus, the execution proceedings to recover the decretal amount from properties other than those which have vested in the State are also covered under Section 4(d).

2. Validity of the Personal Decree Against the Respondent:
The appellants argued that they had obtained a personal decree against the respondent, allowing them to proceed against her other properties. The Court noted that under Order 34 Rule 6 of the Code of Civil Procedure, a personal decree can be passed only after the mortgagee decree-holder has exhausted his remedy against the mortgaged property. In this case, the trial court's decree specified that the appellants could proceed against the respondent personally only if the decretal amount was not fully satisfied from the mortgaged properties. Since the mortgaged properties had vested in the State, the appellants were required to seek their remedy from the compensation amount payable under Section 24(5) of the Act before proceeding against the respondent's other properties.

3. Execution of the Decree Against Non-Mortgaged Properties:
The appellants sought to execute the decree against the respondent's non-mortgaged properties. The Court held that the appellants' application to execute the decree against the respondent by proceeding against her non-mortgaged properties was incompetent at the present stage. The appellants must first seek to recover the amount due to them from the compensation amount payable under the Act before they can proceed against the non-mortgaged properties.

4. Competence of the Appellants' Application for Review:
The respondent challenged the competence of the appellants' application for review of the order passed by the Executing Court. The Court noted that the High Court had rejected the respondent's contention that no personal decree had been passed since an application had not been made by the appellants under Order 34 Rule 6 of the Code of Civil Procedure. The High Court also rejected the argument that a Review Application did not lie against the first order passed by the Executing Court. The Supreme Court did not find it necessary to address this issue further as it was not pressed before them.

5. Determination of the Amount Due to the Appellants Under the Mortgage Decree:
The Claims Officer had determined the amount due to the appellants under the mortgage decree. The appellants had applied under Section 14 of the Act, notifying their claim under the mortgage decree to the Claims Officer. The Claims Officer determined that a sum of Rs. 58,100 plus future interest would be payable to the appellants out of the compensation amount payable to the respondent. The Court emphasized that the appellants must first seek to recover this determined amount as provided by the relevant provisions of the Act before proceeding with the execution of the personal decree.

Conclusion:
The Supreme Court confirmed the order passed by the High Court, holding that the appellants' application to execute the decree against the respondent by proceeding against her non-mortgaged properties was incompetent at the present stage. The appellants must first seek to recover the amount due to them from the compensation amount payable under the Act. The appeal was dismissed with costs.