HARIDAS GHOSH Vs. THAKUR JOGENDRA NATH SAHDEO

JUDGEMENT

(1.) These two appeals are by the decree-holders. Miscellaneous Appeal No. 300 of 1960 arises out of the decree passed in Mortgage Suit No. 31 of 1931 and Miscellaneous Appeal No. 301 of 1960 out of the decree passed in Mortgage Suit No. 30 of 1931. The mortgagee S. C. Roy, held a mortgage executed in his favour by Thakur Jagat Udai Nath Sahdeo, father of respondent Thakur Jogendra Nath Sahdeo, on the 17th of February, 1922, by which he mortgaged eight annas interest in village Hasag and under the second he mortgaged sixteen annas interest in village Nilma. Preliminary decree was passed in both the suits on the 28th of January, 1932, and final decree on the 19th of November, 1932. On the 9th of February, 1933, two execution cases were started at the instance of the decree-holders of the decretal dues. It appears, however, that during the pendency of the execution proceedings, the judgment-debtor prayed for relief under the Chotanagpur Encumbered Estates Act, 1876 (Act 6 of 1876). The prayer was allowed and the execution cases were accordingly stayed sine die on the 17th of February, 1938. The dues, however, of the appellant-decree-holders, could not be satisfied. It appears that the Additional Judicial Commissioner, Ranchi, in his inspection note sometime before the 7th of March, 1956 recorded that on the vesting of the estate under Section 2 of the Chotanagpur Encumbered Estates Act, the execution proceedings became null and void and should no longer be maintainable. The executing Court accordingly ordered the decree-holders' lawyer to be informed to take steps, if any, by the 17th of March, 1956. On the 17th of March, 1956, no further action was taken on behalf of the decree-holders and, as such, tile execution cases stood dismissed as not maintainable.

(2.) On the 12th of March, 1959, the decree-holders started two fresh execution cases, being numbered as 19 and 20 of 1959. The relief prayed for in the execution proceedings by the decree-holder-appellants was that the decretal dues might be made payable out of the amount of compensation due to the mortgagor for the mortgaged properties vesting in the State of Bihar under the Bihar Land Reforms Act, 1950. The respondent-judgment-debtor objected to the prayer and the learned Special Subordinate Judge, Ranchi, who disposed of the execution cases, ordered them to be dismissed, holding that the decree-holders could not proceed against the compensation money in the execution cases. That was on the authority of certain decisions of this Court as well as of the Supreme Court. The decree-holders have come up in appeal against the order of the Court below dismissing the execution cases.

(3.) It is unnecessary to refer to those decisions in detail inasmuch as Mr. Choudbury appearing in support of the appeal has not thought it fit to challenge the correctness of the view of the Court below that if the estate of an intermediary vests in the State of Bihar, the mortgagee cannot levy any execution proceeding and pray for satisfaction of the decretal dues by making them a charge upon the amount of compensation payable to the mortgagor. His only remedy is by way of an application under Section 14 of the Bihar Land Reforms Act, vide Krishna Prasad v. Gouri Kumari Devi, AIR 1962 SC T464 and Anup Singh v. Ajodhya Prasad, 1962 BLJR 612: (AIR 1962 Pat 332) (FB). Mr. Choudhury, however, has contended that, in any view of the matter, the learned Subordinate Judge should not have dismissed the execution cases even if he came to the conclusion that the relief sought for by the appellants could not be granted to them, in so far as their prayer for making the decretal dues payable out of the compensation money was concerned. He has urged that the decision of this Court in Sidheswar Prasad Singh v. Ram Saroop Singh, 1963 BLJR 802: (AIR 1963 Pat 412) (FB) has distinguished the pronouncement of the Supreme Court in the case cited above and held that although the decree-holder cannot proceed against the amount of compensation, as laid down by the Supreme Court, it did not preclude the mortgagee-decree-holder from proceeding against any bakasht land of the intermediary which would be settled with him in accordance with Section 6 of the Bihar Land Reforms Act. There has been some argument at the Bar as to whether there are any bakasht land at all available in the properties mortgaged and whether the mortgage deeds themselves exempted the lands, if any, from the mortgage security, and whether this relief could be asked for by the decree-holders in view of the fact that the decrees themselves, passed in the two suits, were not put in in the execution proceedings, upon which the executing Court might base any decision in regard to this matter. Mr. Ramanugrah Prasad has however, contended that, apart from these difficulties in the way of the decree-holders, there is an additional consideration arising in the case which goes against the contention of Mr. Choudhury that the learned Subordinate Judge should not have dismissed the execution cases but should have allowed the execution cases to remain on the file so that the decree holders might make an application for proceeding against the bakasht lands and the contentions referred to above might be adjudicated upon in due course after hearing the parties. Mr. Prasad has urged that such a relief by way of amendment cannot be sought for in an execution pro-deeding by the decree-holder once he has chosen to confine the relief to particular matters inserted in the execution petition. He must be content with getting the relief he has prayed for and, faiiing that, if he thinks that he would like the execution to proceed against some other properties of the judgment-debtor, such an application would be treated as a fresh application and not as aa application for amendment. Mr. Prasad's contention is well grounded and is supported by two Division Bench rulings of this Court in Maharaja Bahadur Ram Ranbijaya Prasad Singh v. Kesho Prasad Singh, AIR 1941 Pat 635 and Gajanand Sha v. Dayanand Thakur, AIR 1943 Pat 127. In both the cases, it has been held that an application by a decree-holder for relief against a property, other than what was mentioned as the property to be proceeded against in the original execution petition, is in the nature of a fresh application and, even if entertainable, it would be subject to the ordinary bar of limitation. In view of the decisions in the above two cases, it must be held that the orders passed by the learned Special Subordinate Judge, dismissing the two execution cases, cannot be found fault with. The prayer of Mr. Choudhury, therefore, cannot be acceded to. If the decree-holders are, however, advised to start any fresh execution proceedings, it is open to them to do so if the same be maintainable. As it is, however, the two appeals fail and are dismissed. In the circumstances of the case, there will be no order as to costs.