MAHMOOD HASAN KHAN Vs. PANA BAI

JUDGEMENT

(1.) THIS is a special appeal against the decision of a learned Judge of this Court dated 30 -8 -60, by which he dismissed a First Appeal From Order filed by the Appellant.

(2.) THE circumstances in which the appeal has arisen appear to be these. The Appellant filed an application under the Encumbered Estates Act and decrees were passed Under Section 14 of the Act in favour of various creditors including the Respondent who was a secured creditor to whom zamindari property had been mortgaged. The decrees were in the usual course sent for liquidation to the Collector. It is conceded that in liquidation proceedings the Collector granted Encumbered Estates Act bonds to the Respondent in order so satisfy her decree. The bonds were issued Under Section 30 of the Encumbered Estates Act. Though the decree was satisfied by the issue of the bonds By the Government, as the Appellant retained the mortgaged property free from encumbrance he was required under the Encumbered Estates Rules to pay the amount of the bonds to the Government in certain instalments. Some of the instalments were paid. Then the ZA and LR Act came into force and the zamindari of the Appellant was taken over by the Government and he was given compensation bonds instead. As the Appellant did not pay the remaining instalments the Government took some steps for recovering the same out of the Zamindari Abolition Compensation bonds issued to the Appellant. The Appellant then filed an application Under Section 19A of the Encumbered Estates Act praying that by applying the provisions of the Zamindars Debt Reduction Act, 1952, the amount of the decree passed by the Special Judge in favour of the Respondent be reduced. This prayer of the Appellant was rejected by the learned Special Judge, and against that order the Appellant filed the First Appeal From Order which has been dismissed by the order now under appeal.

(3.) LEARNED Counsel for the Appellant urges that because the Appellant was liable to pay certain instalments to the Government, the decree remained unsatisfied. This argument overlooks the fact that so far as the decree was concerned it did stand satisfied; an alternative liability had however been incurred by the Appellant in favour of the Government. This new liability was entirely different from the earlier liability to the decree holder. As provided in Section 23 of Act XIII of 1954 this subsequent liability to pay the amount in instalments by the Appellant to the Government stood unaffected by Section 19A of the Encumbered Estates Act. Simply because that liability continued the Appellant could not say that the decree of the Respondent had not been fully satisfied and was still alive so as to attract the application of the Zamindars Debt Reduction Act.