MOHD AZMAT AZIM KHAN Vs. RAJA SHATRUNJAI

JUDGEMENT

(1.) I concur in the order proposed by my brother Ramabhadran. It was conceded by the applicant's counsel that be could succeed only if his case was covered by the provision of Section 4 (2) of the Zamindars' Debt Reduction Act. Section 14 of the En-cumbered Estates Act requires a Special Judge to examine every claim and to determine the amount due, if any, from the mortgagor to the claimant and to pass a simple money decree having regard also to the provisions of Section 3 of the U. P. Zamindars' Debt Reduction Act for the amount found due to the mortgagee or a decree for costs in fevour of the mortgagor in case no amount is found due and to certify the amount, if any, of the former decree not legally recoverable otherwise than out of the compensation and rehabilitation grant payable to him. The effect of such a decree passed by a Special Judge is, as provided in Section 18,

(2.) The language of Section 18, Encumbered Estates Act, is not intelligible unless one adds some words to it. It deals with the effect of a decree passed by a Special Judge under Section 14; this decree is either for an amount due to the mortgagee or for costs awarded against the mortgagor. The effect of this decree is to extinguish the previously existing rights of the mortgagee to the money and also his rights of mortgage or lien by which the money is secured. Thus his rights to the money and to the security are both extinguished when a decree for money is passed in his favour or a decree for costs is passed against him. The further provision in the section that "where any decree is given by the Special Judge" a right to recover the amount of the decree in a certain manner is substituted for the rights to extinguish, makes no sense unless it is read as referring to only that decree which is for money due to the mortgagee. Evidently the draftsman carelessly omitted some such words "for an amount due to the claimant" after the words "where any decree." Clearly the second part of the provision cannot apply unless an amount is due to the mortgagee, and I would read this provision as if it meant this. The effect of the decree passed in the instant case by the Special Judge was to extinguish all the rights of the opposite-parties-mortgagees and their rights to the mortgaged security and to substitute in place of both the rights the right to recover the amount, for which the decree was passed, in the manner prescribed in the Encumbered Estates Act. It was, therefore, a simple money decree passed in their favour. Far from its creating a charge by its own force, it extinguished the charge created by the mortgage deed.

(3.) The proviso to Section 18 does not indicate that any charge is created under a decree passed by a Special Judge even in the case of a secured debt. The proviso was necessitated by the provisions of the Zamindars' Debt Reduction Act and cannot be read so as to affect its provisions or alter its language. Section 4 (2) cannot be interpreted in the light of it; whatever meaning it had at the time of its enactment cannot be altered by the proviso added subsequently to Section 18 of the Encumbered Estates Act. The proviso deals with the stage of recovery after a decree has been passed under Section 6 of the Zamindars' debt Reduction Act, and, therefore, comes into consideration for the first time after a decree has been passed. Since it does not come into the picture at all before a decree is passed, it stands to reason that it is not to be considered when deciding what kind of a decree should be passed under Section 6, that is, in interpreting the words of Section 4 (2). The proviso is to the provision contained in Section 18 that in lieu of the extinguished rights a right to recover the amount of the decree in a certain manner is substituted. Whatever might have been the manner prescribed in the Encumbered Estates Act for recovering the amount of the decree, the proviso lays down that it cannot be recovered except from the grant. Much emphasis was laid down upon the words "as though the security had not been extinguished" of the proviso, but I cannot accept the contention that they mean that the security had not been extinguished. Such an interpretation would be wholly against the main provision of Section 18 expressly extinguishing the rights to the security. What the words mean is that though the security has been extinguished, the amount will be recovered from the compensation and rehabilitation grant awarded to the mortgagor in lieu of the proprietary rights in the mortgaged property. If the proprietary rights of the mortgagor in the mortgaged property are abolished, the mortgagee would have no claim, not only against it but also, perhaps, against the compensation and rehabilitation grant awarded in lieu of the rights and the proviso, presumably, was intended to make it clear that he will have the light to recover the decreed amount from the grant. The words relied upon do not carry a meaning other than what would have been carried by the words "even though the security had been extinguished". It seems to me that these are certainly not words having an operative import; their sole function is to remove a possible objection, and that too against recovery in a certain thana. They seem to have been added in the proviso only by way of abundant caution, because there is really no inconsistency-between the main provision of Section 18 and recovery of the decreed amount from the grant.