RAI BAHADUR CHOUDHARY RAGHURAJ SINGH Vs. MURARI LAL

JUDGEMENT

(1.) These are two connected appeals by special leave from a common Judgment of the Allahabad High Court. The facts necessary for present purposes may be briefly indicated. The appellant borrowed some money on a promissory note from the respondents' predecessors. The respondents filed the suit on the basis of the promissory note and a decree for Rs. 2,71,000 and odd was passed against the appellant. The decree provided for 20 instalments payable half-yearly. The decree also provided for one or more instalments for pendente lite and future interest beyond the twentieth instalment. The first instalment was payable in November 1938 and thereafter each instalment was payable on or before July 31 and December 31 each year. There was also a default clause providing that in case there were three defaults in the payment of instalments, the whole decree could be executed. Finally the decree created a charge on 18 villages belonging to the appellant. It may be added that the charge was created under S.3 of the U.P. Agriculturists' Relief Act, No. XXVII of 1934. The appellant paid the first 17 instalments in time. He paid the eighteenth instalment on July 31, 1948 but this was late as by then the 20th instalments as well as pendente lite and future interest had not been paid the decree was put in execution by the respondents on April 26, 1951 for recovery of Rs. 49,000 and odd by the sale of a kothi and an Ahata belonging to the appellant. The decree-holder respondent also prayed that in case the whole amount was not realised from the sale of the above property, zamindari property on which a charge had been created might be put to sale.

(2.) The appellant raised objections under S.47 of the Code of Civil Procedure against the execution. He also filed an application under Ss.4 and 8 of the U.P. Zamindars' Debt Reduction Act, No. XV of 1953 (hereinafter referred to as the Act). It is unnecessary to refer to the objection in details, for in the present appeals we are whether S.4 of the Act applies to the present case. Under that section the appellant had applied to the Court which passed the decree to reduce the amount as provided S.47 of the Code of Civil Procedure the appellant claimed the same relief. The is how there were two proceedings in the first Court, one under S.4 of the Act and the other an objection under S.47 of the Code of Civil Procedure. The first Court held that S.4 of the Act did not apply. In consequence it held that the amount for which execution had been taken out was not liable to reduction. It, therefore, dismissed both the application under S.4 as well as the objection under S.47 of the Code of Civil Procedure. There was also a question of limitation, but we are not concerned in the present appeals with that question.

(3.) This gave rise to two proceedings before the High Court. The appellant went in appeal against the dismissal of his objection under S.47 of the Code of Civil Procedure. He also filed a civil revision against the dismissal of his application under S.4 of the Act. The two matters were heard together by the High Court, which held that S.4 did not apply and, therefore, the amount could not be reduced. The High Court having refused to grant leave to the appellant, he secured special leave from this Court; and that is how the matter arises before us.