BIMLANANDA TARKETIRTHA Vs. SURYA NARAIN SINGH

JUDGEMENT

(1.) These two appeals, filed by the decree -holder against the judgment -debtor -respondents, arise out of a common order dated the 14th April, 1964, passed by the learned Subordinate Judge in two execution cases. Miscellaneous appeal No. 217 of 1964 arises out of Execution Case No. 490 of 1934, while Miscellaneous Appeal No. 218 of 1964 arises out of Execution Case No. 105 of 1937, As common questions of fact and law arise in these two appeals, both have been heard together with consent of the parties and are being disposed of by a common judgment,

(2.) The appellant -decree -holder obtained money decree against Raja Shyam Sunder Singh, proprietor of the Pandra "Estate, from the original side of the Calcutta High Court and the decrees were transferred for execution to the court of the Subordinate Judge at Dhanbad. From the order of the executing court it appears that the Commissioner of Chotanagpur Division acting under the provisions of the Chotanagpur Encumbered Estates Act. 1876 (Act VI of , 1876), hereinafter referred to as the Encumbered Act, passed prohibitory orders dated 7th September, 1940, prohibiting sale of the property of the judgment -debtor. Later, the orders were withdrawn and re -imposed in 1944 and again withdrawn in 1945, Thereafter also several prohibitory and recall orders were passed by the Commissioner, referred to in the order of the executing court. These orders presumably seem to have been passed under Section 2 -B of the Encumbered Act, while the question of application of Section 2 of the Act and vesting the management of the properties of the judgment -debtor was pending before the Commissioner. We are not concerned with the aforesaid orders, as the relevant order with which we are concerned is one communicated in the letter dated the 16th April, 1955, from the General Manager of the Encumbered Estates, Purulia, that the Government had taken the management of Tauzi No. 21 and vesting order was passed as mentioned in the order of the court below, and which fact has not been disputed by learned Counsel for the parties before us, Tauzi No. 21 was sought to be proceeded with the two execution cases. This order was passed before the estate of the judgment -debtor vested in January, 1956, in the State of Bihar under the provisions of the Bihar Land Reforms Act, 1950. The learned Subordinate Judge, in view of the prohibitory order communicated by letter No. 5082 -89 dated the 16th April, 1955, stayed the execution proceedings, so that the same may be conveniently revived after the release of the estate. Thereafter, on the 18th January, 1960, after the vesting, in Execution Case No. 105 of 1937, the decree holder filed an application for amendment of the execution petition by adding compensation, final or interim, payable to the judgment -debtor under the Bihar Land Reforms Act and other properties, movables and immovables, of the judgment -debtor, against which the execution case should proceed. Similar petitions were also filed by other decree -holders in Execution Cases Nos. 236 of 1937 and No. 65 of 1939, which were also pending against the judgment -debtor. These amendments were allowed by the court by an order dated the 9th November, 1960. It may be pointed out that no such petition was filed in the other execution case No. 490 of 1934. In this execution case the executing court, suo motu, noted in the order -sheet that as the properties of the judgment -debtor had vested in the State of Bihar, the decree -holder might proceed against the State or the judgment -debtor, as the case may be. The stay order passed earlier was also vacated and on failure of the decree -holder to take steps, the execution case was dismissed. The execution case, however, was restored and notices under Order XXI, Rule 22, of the Code of Civil Procedure was yet to be served. Thereafter, there were correspondences between the executing court and the Land Reforms Deputy Collector with regard to the compensation payable to the judgment -debtor, which was sought to be. proceeded against in execution case No. 105 of 1937, and it was pointed out that no cash amount was available and compensation was payable in bonds drawn in the name of the judgment -debtor. Thereafter, on the 20th February, 1964, the decree -holder filed a petition for attachment of the compensation bonds issued to the judgment -debtor under the Bihar Land Reforms Act, whose numbers were noted in the petition. After that matter was heard, the court, while, looking into the records for passing orders, discovered that the estate of the judgment -debtor was taken over under the Encumbered Act, with the result that all proceedings and suits become barred and no movables could also be attached. It also observed that if any suit or proceeding be there, the Manager of the estate has to be substituted in place of the land -holder whose estate is taken over and asked the decree -holder to show cause by the 25th March, 1964, as to why the execution case should not be dismissed and the petition for attachment of the compensation bonds should not be rejected. Subsequently, on the 14th April, 1964, after hearing the decree -holder, the court passed the impugned orders, holding that the proceedings in the execution cases had become null and void on account of the vesting of the properties in the Manager in 1955 under the Encumbered Act and the execution cases were to be taken not to be pending at all. Consequently, the court below also held that the petitions for amendment or attachment of the bonds could not be maintained and that the aforesaid two execution cases, as well as Execution Cases No. 236 of 1937 and No. 65 of 1939 (which were all heard together) became null and void and dismissed them. Being aggrieved by the said order, the decree -holder -appellant has preferred the present appeals.

(3.) Mr. L. K. Choudhury, appearing for the appellant, has urged that after the vesting of the estate under the Bihar Land Reforms, Act, by virtue of Section 42 of the said Act, the provisions of the Encumbered Act ceased to be operative and the estate of the judgment -debtors would pass on to the State of Bihar under the provisions of the Land Reforms Act. Therefore, learned Counsel submitted that, as vesting of the estate under the Land Reforms Act was on the 1st January, 1956 the vesting orders passed under Section 2 of the Encumbered Act ceased to be operative. As a matter of fact, according to the learned Counsel, the Encumbered Act itself became inoperative and no order for revival was necessary to be passed under Section 12 of the Encumbered Act, as held by the court below.