KRISHNA PRASAD Vs. GOURI KUMARI DEVI

JUDGEMENT

(1.) 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.