B MANMOHAN LAL Vs. BRAJ KUMAR LAL

JUDGEMENT

(1.) This application in revision is directed against an order passed by the Munsif of Jaunpur City directing the amendment of a decree in accordance with the provisions of Section 8, Debt Redemption Act (13 [XIII] of 1940). The facts are not in controversy and are as follows : On 31 January 1933, B. Manmohan Lal and others, the applicants, obtained against Raj Kumar Lal and others, opposite parties, a preliminary decree for sale on the basis of a simple mortgage. The opposite parties on 17 September 1935, filed an application under Section 4 Encumbered Estates Act (25 [xxv] of 1934) and the application was in due course, in pursuance of the provisions of Section 6 of the Act, forwarded by the Collector to a Special Judge. After the presentation of the application under the Encumbered Estates Act, before the Collector the applicants on 19 October 1935, filed an application for the preparation of a final decree for sale and further proceedings on this application were, in view of Section 7 (1)(b), Encumbered Estates Act, stayed. The decree-holder applicants then preferred a claim before the Special Judge with respect to the amount payable to them under the preliminary decree. While the proceedings under the Encumbered Estates Act were in progress before the Special Judge the Debt Redemption Act was passed and came into force on 1st January 1941. Thereafter on 22 September, 1941, the judgment-debtor opposite parties filed an application before the Munsif, who had passed the preliminary decree, for the amendment of the decree in accordance with Section 8, Debt Redemption Act. The applicant, decree-holders objected to the application mainly on the ground that, as the judgment-debtors had already made an application under the Encumbered Estates Act, they cannot also take advantage of Section 8, Debt Redemption Act, and get the preliminary decree amended. This contention of the decree-holders was overruled by the Munsif and he ordered amendment of the decree. Being aggrieved by this order of the Munsif the decree-holders filed the present application in revision.

(2.) Even though I am satisfied that the Munsif had, under the circumstances stated above, no jurisdiction to amend the decree, I consider that this Court is not competent to afford relief to the applicant decree-holders in the exercise of its revisional jurisdiction and this application must, therefore, fail. By Section 8, Debt Redemption Act, the Courts specified in that section are vested with jurisdiction to amend a decree to which the Act applies. It is clear, to my mind, that that section is confined in its operation to amendment of decrees under which an agriculturist or a workman is liable to pay a certain amount and has no application to cases where the decree has ceased to exist as such and the liability of the agriculturist or the workman is referable not to a decree but to a claim that is the subject of adjudication. Now the moment a decree-holder prefers before the Special Judge a claim based on the decree obtained by him the decree ceases to exist as such, and the claim of the decree-holder has to be adjudicated upon the conformity with the provisions of the Encumbered Estates Act. This was the view taken in Sahi Mal Manohar Das V/s. Mt. Iltifatunnisa Begam . In that case it was held that: It is clear from the scheme of the Encumbered Estates Act that a decree obtained by a creditor ceases to exist as such when he prefers a claim under Section 9 of the Act. The claim has to be adjudicated upon not on the basis of the decree held by a claimant but on the basis of the loan that he originally advanced to the landlord applicant. That this is so is clear from the provisions of Secs.14 and 15 of the Act. It is to be noted in this connection that every claim preferred by a creditor ultimately becomes the subject of a decree passed by the Special Judge. This shows that a decree obtained by a creditor prior to the initiation of proceedings under the Encumbered Estates Act ceases to be operative as a decree when the debt which merged in that decree becomes the subject of adjudication by the Special Judge. A claim by a creditor based on a decree stands on the same footing as a claim by a creditor on the basis of the loan advanced by him.

(3.) In the case before us, long before the date of the application under Section 8, Debt Redemption Act, the decree-holder applicants had, as already stated, preferred their claim before the Special Judge with respect to the amount due to them under the preliminary decree for sale. The moment the applicants submitted their claim to the Special Judge the preliminary decree ceased to exist as Such and became the subject of adjudication in proceedings under the Encumbered Estates Act. It follows that on the date that the judgment-debtor opposite parties presented their application under Section 8, the preliminary decree for sale was no longer in existence, and, as such, the munsif had no jurisdiction to amend a decree that was non existent.