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TMI Blog1969 (3) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... . The decision of the execution court was affirmed appeal but reversed in second appeal by the High Court. The two questions that arise for decision in this appeal are (1) whether the objection as regards the executability of the decree pleaded by the judgment debtors is barred by the principles of res judicata and (2) whether the mortgage decree has become unexecutable in view of the provisions of the Act. We shall now briefly set out the material facts of the case. The mortgages, the appellants in this appeal obtained a preliminary decree on June 26, 1947 on the basis of a mortgage. The property mortgaged was an Estate within the meaning of the Act. That property included both Bakasht lands as well as other lands. The Act came into force after the passing of the aforementioned preliminary decree. The decree-holders filed petition for passing a final decree on September 19, 1955. The Estate mortgaged vested in the State of Bihar on January 1, 1956 as a result of a notification issued under s. 3 (1) of the Act. A final decree was passed in the mortgage suit on October 1, 1956. Thereafter the mortgagees applied under s. 14 of the Act and got determined the compensation to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific term say that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee, of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai and Ors., L.R. 17 I.A. 150. Therein the Judicial Committee observed thus : None of the questions, either of fact or law, raised by the pleadings of the parties was heard or determined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code. It must fall within one or other of the sections of chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty, attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief. From this decision it is clear that the Judicial Committee opined that before a plea can be held to be barred by res judicata that plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State was the non-bakasht lands as well as the proprietory interest in the Bakasht lands and hence the Bakasht lands do not have the protection of s. 4(d); Consequently it is not necessary for them to exclusively proceed under s. 14. The consequences of the vesting of an Estate is set out in s. 4. Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely free from all encumbrances. Among the rights enumerated therein undoubtedly includes the right of possession. In view of s. 4(a) there is hardly any doubt that the proprietor loses all his rights in the estate in question. After setting out the various interests lost by the proprietor the section proceeds to say such proprietoror tenure holder shall cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act . In order to find out the implication of the clause extracted above we have to go to s. 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in khas possession of an inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act i.e. a claim under s. 14 before the Claims Officer for determining the amount of debt legally and justly payable to each creditor in respect of his claim'. The procedure to be followed in such a proceeding is prescribed in ss. 15 to 18. 'Provisions relating to the assessment and payment of compensation payable to the quondum proprietors and tenure-holders are found in Chap. V of the Act (ss. 19 to 31.) Section 24(5) provides that in the case where the interest of a proprietor or tenure-holder is subject to a mortgage or charge, the compensation shall be first payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure-holder concerned: That subsection further prescribes the maximum amount that can be paid to such a creditor. In view of what has been stated above it follows that under the circumstances of this case it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act. Our conclusion receives strong support from some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allhabad Bank Ltd., Allahabad, [1962] 2, S.C.R. 441 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to section 4(b) and determine what its true scope and effect are. Mr. Jha contends that in construing the words of Section 4 (d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests. It was not the object of the Act, says Mr. Jha, to extinguish, debts due by the proprietors or tenure-holders and so, it would be reasonable to confine the operation of s. 4 (d) only to the claims made against the estates which have vested in the State and no others. In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified. But as we have already seen, the provisions contained in section 16 in regard to the scaling down of the debts due by the proprietors and tenure- holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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