ABDUL KARIM BABU KHAN Vs. MAHMOD ALI KHAN

JUDGEMENT

(1.) This is an appeal against the Order of the Second City Civil Judge dismissing the execution petition filed by the appellant on the ground that the debt was extinguished under section 22 of the Jagirdars Debt Settlement Act, XII of 1952 (hereinafter called the Act). It appears that the appellant obtained a decree against five respondents on a compromise for Rs. 12,000 O.S. on 2Oth Meher, 1358-F., corresponding to 2Oth August, 1949. Under the terms of the decree the decretal amount was to be paid in instalments of Rs. 1,000 per year with a default clause that if any one instalment was not paid, the decree-holder would only be entitled to recover that instalment alone. The first instalment under the decree was due only on 3oth April, 1950, but the respondents-judgment-debtors did not pay the amount on the due date and defaulted. Thereupon the appellant filed an execution petition on 21st June, 1951, which however was dismissed for default on 31 st January, 1953. Thereafter the second execution petition was filed on 25th June, 1954. and notice having been served on the judgment-debtors, judgment-debtor No. 1 objected to the execution of the decree by his petition, dated 17th February, 1955 in which he alleged that he was a jagirdar, that no application was presented for settling the debt by the jagir Debt Settlement Board within the time specified in section 11 and that consequently the debt is extinguished under section 22 of the Act. Before the lower Court the decree-holder contended that the respondent-judgment-debtor was not a jagirdar, or if he was a jagirdar, he made the decree-holder believe that he was not so, and consequently either the provisions of the Act did not apply, or that the debt was exempt under clause (b) of sub-section (2) of section 22. The learned Second City Civil Judge held that the respondents were hissedars and consequently they are Jagirdars within the meaning of clause (f) of section 2 of the Act. He further held that since the last date for the application under section 11 was 3Oth June, 1953, the execution petition was beyond the time prescribed therein and consequently the debt is extinguished under section 22 (1) of the Act.

(2.) In this appeal, the question is whether the decree-holder was obliged to file an application under section 11 to have his debt referred to the Board. In our view, the learned Second City Civil Judge has not directed himself to the provisions of the Act or to the question of the jurisdiction of the Court to determine whether the judgment- debtor was a jagirdar and whether the debt was more than Rs. 5,000. It may be Mated that only one judgment-debtor raised this objection, though the learned Judge thought that all the judgment-debtors raised that plea. In fact, except for the first judgment-debtor, the other judgment-debtors were ex parts. Even before us they are also ex parte. Inasmuch as the learned Advocate for the decree-holder concedes that a similar question would arise even with respect to the ex parte respondents as they are the brothers and sisters of the first judgment-debtor, we deal with this case as if it appertains to the ex parte respondents also.

(3.) The Act contemplates the settlement of debts of the Jagirdars by a Board and deals with two aspects of the matter ; firstly, where there are no cases pending before civil Courts and secondly, where there are suits, decrees, execution petitions or appeals or where there are other proceedings whether in civil Courts or in revenue Courts. In so far as the first category is concerned, section 11 (1) enables a jagirdar to file an application to the Board of competent jurisdiction on or before such date as the Government may notify in the Jarida for the settlement of debts due to the Jagirdars. Sub-sections (2) and (3) specify the form and contents of the application which has to be made. Even without this application the debtor has been given the power to require the creditor to file a true and correct statement before the Board under section 12, the procedure relating thereto being as set out in the said section.