MIRZA INAYAT BEG Vs. MIRZA ABDUL RAHMAN BEG

JUDGEMENT

(1.) This is an appeal by Mirza Inayat Beg against an order of a civil Judge refusing to stay further proceedings in execution of a decree for sale. The facts giving rise to the appeal are as follows: One Umrao Beg, the ancestor of the contesting respondent brought a suit for recovery of Rs. 17,000 odd by sale of mortgaged property against Fayazi Begum, Hakim Beg and certain other persons. Hakim Beg was minor on the date of the institution of the suit. Umrao Beg obtained a preliminary decree for sale in 1922 and that decree was made final in 1923. By the begining of the year 1926 Hakim Beg attained majority, and he sold a portion of his property covered by the decree for sale to Inayat Beg appellant. Thereafter both Hakim Beg and Inayat Beg filed a suit for a declaration that the decree for sale obtained by Umrao Beg was not binding on Hakim Beg and was not enforceable against his properties, as Hakim Beg was not represented by a duly appointed guardian in the suit filed by Umrao Beg. This suit was ultimately decreed and, as a result of the decree passed in the suit, the original suit filed by Umrao Beg was reopened so far as Hakim Beg was concerned. It appears that Inayat Beg was also impleaded as a defendant in Umrao Beg's suit when that suit was reopened against Hakim Beg. The suit was again decreed against Hakim Beg and a preliminary decree under Order 34, Rule 4, Civil P.C. was passed on 5th December 1933. Though in this preliminary decree Inayat Beg's name figured as one of the defendants, the decree was solely against Hakim Beg and there was no liability cast on Inayat Beg by that decree. The decree was made final in due course. "But in the final decree the name of Inayat Beg did not appear as a judgment-debtor and the decree was only against Hakim Beg.

(2.) After the passing of the final decree, last mentioned Inayat Beg filed an application under Section 4, Encumbered Estates Act (25 of 1934), and his application was forwarded by the Collector to the Special Judge in accordance with the provisions of Section 6 of the Act. In the meantime, the respondents had taken out execution of their decree for sale against Hakim Beg. Inayat Beg then filed an application before the Civil Judge praying that the execution proceedings initiated by the respondents be stayed in view of the provisions of Section 7, Encumbered Estates Act. The learned Judge rejected the application and, in our judgment, rightly. Clause (a) of Sub-section (1) of Section 7 runs as follows: When the Collector has passed an order under Section 6 the following consequences shall ensue : all proceedings pending at the date of the said order in any civil or revenue Court..., in respect of any public or private debt to which, the landlord is subject, or with which his immovable property is encumbered,...shall be stayed....

(3.) It is clear from this provision that Clause (a) is confined in its operation to proceedings in respect of a debt (1) to which the landlord applicant is subject, or (2) with which his immovable property is encumbered. If neither of these conditions is satisfied Clause (a) does not come into play. In the present case Inayat Beg is not subject to the decretal debt which the respondents are seeking to realize by execution of their decree. Even though Inayat Beg was a party to the preliminary decree, no pecuniary liability was cast on him by that decree. To the final decree Inayat Beg is not even a party and is therefore not under an obligation to satisfy that decree. The first condition is therefore not satisfied in the present case.