SRINIVASA RANGA ROW PANTULU (DIED) BY THE OFFICIAL ASSIGNEE, HIGH COURT Vs. RAJA KUMARA VENKATA PERUMAL RAJAH BAHADUR VARU, MINOR RAJAH OF KARVETNAGAR BY HIS GUARDIAN MRWAVARADACHARIAR

JUDGEMENT

(1.) In construing the provisions of Section 41 of the Court of Wards Act, I of 1902, regard must be had to the scope and object of the amendments introduced into the Madras Court of Wards Regulation V of 1804 by Madras Act IV of 1899 and reproduced without substantial alteration in the Act of 1902. The object was to save the estates of embarrassed proprietors or at least a portion of them for their owners, and it was hoped that with the and of the additional powers conferred on it the Court of Wards would be able to provide for the full discharge of the proprietor s debts and liabilities. If not, the creditors were left to their ordinary remedies which were only interfered with as expressly provided. Among the powers conferred on the Court of Wards and its Agent, the Collector, specified in the order under Section 19 of the Act, was that of requiring all persons having pecuniary claims on the ward, whether decrees or not, to notify those claims within a specified period, failure to do so being" visited with the penalties prescribed by Sections 41 and 42. With the information thus acquired, and with the aid of further powers of ousting usufructuary mortgagees from possession and converting them for the time into simple mortgagees and of reviving improvident leases, it was hoped that the Court of Wards might find itself in a position to raise sufficient money to discharge all the liabilities. Section 41 imposes two penalties with regard to claims which have not been duly notified. The first of them is that " it shall, notwithstanding any law, contract, decree or award to the contrary, cease to carry interest from the expiration of the period prescribed by Section 37," for notifying claims. This threatened loss of interest was a strong inducement to notify claims, and having regard to the express provision that interest shall cease even when payable under a decree, and to the absence of any provision as to its again becoming payable except in the event specified in Section 55(4), I agree with both the learned Judges that, under the section, the cessation of interest is final, and that the claimant is left to prosecute his legal remedies for the amount already accrued due to him.

(2.) As regards the second penalty that the unnotified claim "shall not be paid until after the discharge or satisfaction of the claims notified or admitted under Section 38" it may be observed in the present place that the provision cannot be construed as depriving secured creditors of their security or as authorising the application of money raised on their securities otherwise than in satisfaction of their claims. If not paid the secured creditor is entitled to retain his security till he is paid. In these circumstances to hold that the Court of Wards is prohibited by this section from raising money on the security and discharging the secured creditor and applying the surplus in the discharge of the general indebtedness would merely be to prevent the court from raising money for the beneficial purposes specified in Section 323 (3) Civil Procedure Code and would unnecessarily embarrass it in the discharge of the difficult functions entrusted to it without advantage to anybody. This cannot, I think, have been the intention of the Legislature, and I think that therefore we are justified in putting a restrictive construction on this highly general section and holding that in the case of secured creditors who have not notified, it only prohibits payments to them by the Court of Wards and out of the unincumbered funds at its disposal, and does not prohibit the realisation of the security and the satisfaction out of the proceeds of the secured creditor s claim.

(3.) If the prohibition of payment in Section 41 is directed to the Court of Wards, it follows of course that it must cease as held by Krishnan, J., when the Court of Wards withdraws from superintendence. I am disposed to think that it must be confined to the Court of Wards, and that it does not extend to the authorities executing decrees even during the continuance of the superintendence of the Court of Wards. Creditors, whether they have notified or not, are not prevented from obtaining decrees and proceeding to execute them. If the execution is left to the Civil Courts, each court must execute the decree before it with due regard to the rights of secured creditors and to the rights of unsecured decree-holders to rateable distribution. It can hardly have been intended that on each occasion of executing a decree the executing court should have to embark on an inquiry as to whether all the notified debts have been paid, and I think that sufficient effect may be given to Section 41 without construing it as affecting the duties of executing Courts, and that if it had been intended to affect them there would have been express provisions to that effect. Again, when the Local Government exercises its power under Section 45 of transferring decrees against the ward to the Collector for execution, I think the same considerations apply and that the provisions of Section 41 as to order of payment do not affect the Decree-Collector, as he is called, in the discharge of his duties under Section 321-325(c) of the old Code of Civil Procedure which are made applicable by Section 47 subject to the rules prescribed by the Local Government under Section 45(2) which however apply only to procedure and do not affect the substantive right of the parties. In the case of decrees such as the present obtained by secured creditors ordering the sale of immoveable property in pursuance of a contract specifically affecting the same, the Decree- Collector has the powers conferred upon him by Section 321 and is required by Section 324A to apply the moneys realized by him, subject to the claims of maintenance holders, in execution of the decree for which the court ordered the sale of the immoveable property, and in the case of other decrees to apply such moneys by way of rateable distribution. Under Section 323(3) the Decree-Collector is also empowered to discharge the claim of any incumbrancer whether it had matured or not " for the purposes of improving the saleable value of the property available or any part thereof, or rendering it more suitable for letting or managing, or for preserving the property from sale in satisfaction of an incumbrance." I do not think that the second part of Section 41 was intended to affect the Decree-Collector as regards these powers and duties.