Gauri Kumari Devi vs Babu Krishna Prasad And Ors. on 29 September, 1967

JUDGMENT

Tarkeshwar Nath, J.

1. This application by the judgment-debtor is directed against the order of the learned Subordinate Judge reviving Execution Case No. 19 of 1954 and holding that the decree-holders were not debarred from executing the decree passed in Title (Mortgage) Suit No. 84 of 1943.

2. This case has a chequered career and the facts giving rise to the present litigation are these:- The petitioner was the owner of 10 annas 8 pies proprietary interest in village Sonechari, tauzi No. 11912 in the district of Patna. There was khudkasht land measuring 16.41 acres appertaining to khata No. 3 in this tauzi. On 10-7-1937 the petitioner along with her husband Shayama Kant Lal executed an anomalous mortgage deed in respect of the said share in favour of Krishna Prasad and his three sons (opposite party Nos. 1 to 4) for a sum of Rs. 35,000/-. The mortgagees, opposite party Nos. 1 to 4 instituted Title Suit No. 84 of 1943 in the Court of the Subordinate Judge, Patna to enforce that mortgage, but later on the suit was transferred to the Court of the Additional Subordinate Judge, First Court, Patna and was re-numbered as Mortgage Suit No. 7 of 1945, This suit was decreed on 26-8-1946 and the trial Court while passing that preliminary decree ordered that “for the satisfaction of the decretal amount the mortgaged properties would be charged preliminary and if the decretal amount is not fully satisfied from them, then’ defendant No. 1 (Gauri Kumari Devi) would be personally liable for the satisfaction of the balance, if any.” This preliminary decree was for a sum of Rs. 50,308/14. Final decree was subsequently passed on 30-9-1947 for Rs. 52,950/3/-. The decree-holders filed an Execution Case No. 12 of 1948 in the Court of the Subordinate Judge at Patna, but it was dismissed for default. Thereafter, they filed another execution Case No. 6 of 1952 in the Court of the Subordinate Judge at Patna for the realisation of the decretal amount by the sale of the mortgaged zamindari properties. While the said execution case was pending, the mortgaged properties vested in the State of Bihar on 27-6-1953 under the provisions of the Bihar Land Reforms Act, 1950 and, accordingly, the petitioner filed an application on 28-9-1953 stating that the execution case was not maintainable after the vesting inasmuch as those properties were not liable to sale. Ultimately, the said execution case was dismissed on the 9th of January, 1954 for default. But before this dismissal, the mortgagees had filed on the 16th of December, 1953 an application before the Claims Officer, Patna under Section 14 of the said Act and it was registered as Claim Case No. 10 of 1953. The decree-holders then got the decree transferred to the Court of the Sub- ordinate Judge, First Court, Gaya and they filed on 24-2-1954 Execution Case No. 19 of 1954 in that Court against the petitioner and
her husband for realisation of the decretal amount together with interest according to the aforesaid decree passed in Mortgage Suit No. 84 of 1943 by sale of certain properties, which were not the subject matter of the mortgage. On 13-8-1954 the petitioner filed an objection challenging the maintainability of the execution case in view of the provisions of the Bihar Land Reforms Act and on a further ground that there was no personal decree against her. That objection petition was registered as Miscellaneous Case No. 96 of 1954. The Subordinate Judge allowed the objection on 23-12-1954 holding that the execution case could not proceed against the other properties, inasmuch as, there was nothing on the record to indicate that any application under Order XXXIV, Rule 6 of the Civil Procedure Code was filed by the decree-holders and a decree under that rule was obtained by them. This order was passed ex parte. In view of that order, the execution case dismissed on 23-12-1954 as being not maintainable and this order was recorded separately on 23-12-1954. It was noted in the register of execution cases that this execution case was dismissed as not maintainable and this result was communicated to the transferor court on 10-1-1955.

3. The decree holders then filed an application under order 47, Rule 1 and Section 151 of the Civil Procedure Code for the review of the order dated 23-12-1954 and this was registered on 18-1-1955 as Miscellaneous Case No. 16 of 1955. On 204-1955 the executing court allowed the application for review and held that the decree-holders had obtained a personal decree against the judgment debtor (petitioner) and they had a right to sell the other properties in execution of the personal decree. The executing court by a later order No. 35 of the same date restored the Execution Case No. 19 of 1954 to its file.

4. Being aggrieved by the aforesaid order dated 20-4-1955 the petitioner filed an application in revision (Civil Revision No. 590 of 1955) in this Court. On 8-1-1957 this Court allowed the civil revision and set aside the order dated the 20th April, 1955 holding that the executing court was right in passing the order dated the 23rd December, 1954 and the subsequent order dated 20-4-1955 was not consistent with the provisions of Section 4(d) of the Bihar Land Reforms Act. On receipt of this order of the High Court, the executing court passed an order on 20-3-1957 dismissing the execution case (19 of 1954) “as not maintainable”. The decree holders (opposite party Nos. 1 to 4) being aggrieved by the order of this Court filed an appeal before the Supreme Court (Civil Appeal No. 352 of 1959), after obtaining a certificate from the High Court, but they were unsuccessful and the appeal was dismissed and the order of the High Court was affirmed on the 5th of March, 1962.

5. The Claim Case No. 10 of 1953 in respect of the mortgage bond dated 10-7-1937 and the aforesaid mortgage decree were proceeding and on 24-11-1956, the Claims Officer, Patna (Divisional Subordinate Judge) held that the mortgagee opposite party No. 1 was entitled to recover Rs. 58,100/- plus future interest at 4 per cent per annum over the principal amount only, but not exceeding the amount of principal, out of the compensation payable for the properties charged under the mortgage bond. The claim was allowed to this extent.

6. On 11-9-1962 the decree-holder filed a petition before the Subordinate Judge, Gaya for revival of the execution Case No. 19 of 1954 on the ground that the compensation for the properties vested in the State of Bihar was less than the amount of dues determined by the Claims Officer and as such, they were entitled to enforce the personal decree for the amount which remained due even after utilising the entire amount of compensation. The petitioner filed a rejoinder on 22-1-1963 objecting to the revival. The decree-holders had not produced any satisfactory evidence before the executing court to indicate as to what amount they had realised till then and on this ground the executing court held on 6-1-1964 that the execution case could not be revived at that stage, but it gave a liberty to the decree holders to renew their prayer for the revival of the execution case after obtaining final payment of the amount of compensation from the Land Reforms Department. The executing court directed that the moment the total amount payable to the decree-holders as compensation money would be fixed by the Land Reforms Department, the decree-holders might renew their prayer and at that time the question of maintainability of the application would be considered along with the objections of the judgment-debtors.

7. The total compensation, however, in respect of tauzi No. 11912 was determined in Compensation Case No. 270/87 of 1953-54 and it was to the tune of Rs. 22,419.68 Raise; in other words, the
mortgagegees claimants were able to get this amount only in realisation of their claim in Claim Case No. 10 of 1953.

8. On 13-2-1965 the decree holder opposite party No. 1 filed an apliplication under Section 151 of the Civil Procedure Code for restoration of the Execution Case No. 19 of 1954 stating inter alia that the Compensation Officer had finally ascertained the amount of compensation for the mortgaged properties at Rs. 22,419.68 Paise, but this amount fell short of the dues of the decree-holders and accordingly they were entitled to realise the balance in that execution case by the sale of the other properties of the judgment debtors, inasmuch as, there was already a personal decree against them. This application was registered as Miscellaneous Case No. 19 of 1965. The petitioner filed a rejoinder objecting to the revival of the execution case mainly on the ground that the execution could not proceed against the other properties of the judgment-debtors in view of the inter-parties decisions of the High Court and the Supreme Court (referred to above). It appears that Shayama Kant Lal (judgment debtor No. 2), husband of the petitioner had died after the passing of the decree leaving behind his widow (the petitioner) and five daughters (apposite party Nos. 5 to 9) as his heirs and legal representatives. Petitioner was already impleaded as a party in Miscellaneous Case No. 19 of 1965, but later on those five daughters also were made parties in that Miscellaneous Case in place of their father. Those daughters (opposite party Nos. 5 to 9) also filed objection to the revival of the said execution ease. The Miscellaneous Case No. 19 of 1965 was heard by the executing court and it took the view that major portion of the decretal amount still remained to be satisfied and according to the decree passed in the mortgage suit by the Additional Subordinate Judge, Patna and the judgment of the Supreme Court, the decree-holders were entitled to get the Execution Case No. 19 of 1954 revived, inasmuch as, a personal decree had been passed against the petitioner. The executing court allowed the miscellaneous case by order dated 2-3-1966 and revived the Execution Case No. 19 of 1954. Being aggrieved by this order, the judgment-debtor No. 1 has filed the present application for revision.

9. The entire tauzi No. 11912 which was the subject matter of the mortgage deed dated 10-7-1937 has vested in the State of Bihar in accordance with the provisions of the Bihar Land Reforms Act and this is one of the important facts which has to be kept in view while deciding the present dispute between the parties. Learned Counsel for the petitioner contended that in view of the various provisions of the Bihar Land Reforms Act, the mortgage decree was inexecutable and the executing court has no jurisdiction at all to execute the said decree. He developed this argument in the following manner: Section 4 (a) of the Bihar Land Reforms Act laid down the consequences which ensued after the vesting of a estate or tenure in the State and Clause (a) included the words “such estate or tenure”. Section 4(d) also included the very same words “such estate or tenure”. According to Section 4(d) neither a suit could lie nor any execution case could proceed for the recovery of any money from any proprietor or tenure-holder, the payment of which was secured by a mortgage of a estate or tenure which had vested in the State. In other words, according to learned Counsel after the vesting
of the estate the rights accruing under the mortgage were completely annihilated and destroyed and it was not open to the mortgagee to assert any right and enforce it according to the terms of the mortgage bond. The Land Reforms Act was a self-contained and integrated Act and the effect of it was that whatever lights a mortgagee had prior to the said Act came to an end and he was pinned down to the provisions of the said Act and his rights were much circumscribed and limited under that Act. This Act gave new rights and created certain obligations. The purpose of the Act was also to give relief to the debtors and it was no longer open to a creditor to enforce the terms of the mortgage deed. The decree passed in mortgage suit, even if, there was a personal decree, was no more effective, after the determination of the claim by the Claims Officer and the decree holders were not entitled to realise anything more than the amount of total compensation which was payable to them in satisfaction of their claim although the total amount of claim was higher than the amount of compensation. The order of the Claims Officer had not the force of a decree and the executing court could not enforce the order of the Claims Officer. In support of these contentions learned Counsel relied on the
interpartes decision of this Court in Gauri Kuman Devi v. Krishna Prasad 1957 B.L.J.R. 201 and that of the Supreme Court in appeal (from the decision of this Court) of Krishna Prasad v. Gauri Kumari Devi 1962 B.L.J.R. 532. He relied on Sidheshwar Prasad Singh v. Ramsarup Singh 1963 B.L.J.R. 802 F.B. and the recent decision of the Supreme Court Raj Kishore Prasad Narain Singh alias Shrikrishna Ballabh Narain Singh v. Ram Pratap Pandey 1967 B.L.J.R. 331 in which the provisions of Section 4(d) came to be considered.

10. I will refer to these decisions subsequently at a proper place while dealing with these contentions. Learned Counsel for the decree-holders opposite parties, on the other hand, submitted that the right of a mortgagee either under the mortgage bond or under the mortgage decree was not extinguished or destroyed by the provisions of the Bihar Land Reforms Act and the only effect of the provisions of Section 4(d) of the said Act was that the mortgagee could not put the mortgaged properties to sale, inasmuch as, those properties had vested in the State of Bihar according to Section 4(a) of that Act. According to him, a wider meaning could not be given to the provisions of Section 4(d) and the mortgagee was not debarred from proceeding against the other properties of the mortgagor for the realisation of such sum which might be due even after the receipt of the amount of compensation towards the payment of the mortgaged debt. He pointed out that a personal decree was passed against the mortgagors in the present case by the trial court and that decree still subsisted and it could be executed in the Civil Court. That part of the mortgage decree was in no way affected by the order passed in the claim case and the scheme of the Bihar Land Reforms Act was not that the amount determined as a mortgage debt by the Claims Officer should not be realised in full and the mortgagee had to content himself only by getting the amount of compensation irrespective of the fact whether the said amount liquidated the entire debt or not. In support of these contentions he relied on Raghubir Saran Rastogi v. Kavira) Basudevanand and Ors. 1953
B.L.J.R. 563, Mahanth Sukhdeo Das v. Kashi Prasad Tiwari 1958 B.L.J.R. 559 and Anup Singh v. Ajodhya Prasad alias Lal Baboo and Anr. 1962 B.L.J.R. 612 F.B. He further submitted that even according to the decision of the Supreme Court in Krishna Prasad v. Gauri Kuman Devi 1962 B.L.J.R. 532 the decree-holders were entitled to execute the personal decree and realise their dues by the sale of the other properties of the mortgagors.

11. In view of the respective contentions of the parties, the substantial question for consideration is as to whether the personal decree passed by the trial court in the mortgage suit is executable or whether such right of the mortgagees has been taken away by the provisions of Section 4(d) of the Bihar Land Reforms Act. Section 4(d) reads thus:

No suit shall lie in any Civil Court for the recovery of any money due from such proprietor or tenure-holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped.

The effect of this sub-section has been considered in several decisions and I would first refer to Raghubir Saran Rastogi v. Kaviraj Basudevanand 1953 B.L.J.R. 563 The contention in that case was that the payment of the money was partly, though not in whole, secured by mortgage of vested estates and the case fell within the purview of Section 4(d). That contention was dealt with in the following manner:

Grammatically the language of Section 4(d) may admit of the interpretation contended for the respondent, but the consequence of such an interpretation would be starling and unjust. For example, Section 4(d) would such an interpretation prohibit a mortgagee from enforcing the personal covenant. If a purely grammatical construction is adopted the mortgagee would be deprived not merely of his security but he will be prohibited from obtaining even a money-decree for the amount he has advanced. To take another example, suppose a debtor has executed a mortgage-bond with respect to 100 tauziz out of which one tauzi has been notified by the Government under Section 3 of the Bihar Land Reforms Act. If the grammatical construction is right, the mortgagee cannot bring a mortgage suit even for the 99 tauzis which have not been notified nor vested in the State Government, and the creditor would be left without any remedy for enforcing his security. It cannot be supposed that the Legislature would have contemplated a result so unreasonable and so unjust. It is necessary therefore to put some limitation on the general language of Section 4(d) of the Bihar Land Reforms Act. In a case of this description the principle to be applied is clear. The principle is that the Section must be construed in the background of particular subject matter of the statute. To put it in other words the wide meaning of the Section must be cut down and restricted with reference to the scope and object of the statute.

Ramaswami, J. (as he then was) delivered the leading judgment in that case and his Lordship further held as follows:

In my opinion the language of Section 4(d) of the Act must be given a limited meaning with reference to the scheme of the statute. My conclusion is that Section 4(d) must be interpreted to mean that no suit shall be brought in any civil court for the recovery of the mortgage money or money secured by a charge so far as the vested estates are concerned if a suit or proceeding is already instituted such suit or proceeding shall be dropped so far as the vested estates are concerned. To put it differently, Section 4(d) will not be applicable to a case where money is secured by a mortgage or charge on estate, some of which are notified under Section 3 of the Act and others are not so notified. In such a case Section 4(d) will be a bar to the suit or execution proceeding so far as the vested estates are concerned, but the creditor will be entitled to prosecute the suit or execution proceeding as regards the estates or portions of estates which are not vested in the State.

Their Lordships took the view (in that case) that it was open to the creditor to make an election as to the choice of his remedies in a case of that description, in other words, it was open to him either to give up his right of filing a claim under Section 14 with respect to the vested estates and to prosecute the suit or execution proceeding exclusively in civil court. On the other hand, the creditor could give up his remedy in the civil court and prosecute his claim solely under Section 14 before the Claims Officer who will proceed under Section 16 to re-open the decree or to grant necessary relief. By construing Sections 14 and 16 in that mariner there could be no occasion for conflict of jurisdiction between the Claims Officer acting under Section 16 and the civil court hearing a mortgage suit or executing a mortgage decree. The position thus is that a limited meaning was given to the language of Section 4(d) and that Section was no bar to the mortgagee getting a personal decree and executing the same for the realisation of the mortgage debt.

12. The next case in point of time is that of Gauri Kumari Devi v. Krishna Prasad 1957 B.L.J.R 201 (who are parties to the present case). It is this very decree which was being executed in that case and a question arose as to whether it was executable. The executing court had held that it was open to the decree-holders to enforce the personal liability as provided in the judgment by taking execution against non-hypothecated properties of the judgment-debtors. That order was the subject matter of the civil revision and the contention on behalf of the judgment-debtor petitioner was (1) that the said order was wrong on merit and (2) that no review lay against the order passed on 23rd December, 1954. Their Lordships considered the provisions of Section 4(d) as well and distinguished the decision in Raghubir Saran Rastogi v. Kaviraj Basudevanand 1953 B.L.J.R 563 on the ground that that decision dealt with a case where money had been secured by the mortgage or charge on number of properties, some of which had vested in the State whereas others were still intact. Ahmad, J. (as he then was) was of the opinion that the view taken in that decision might be supported on the facts of that case, but in a case where all the properties under mortgage had vested in the State of Bihar, the position would be different and there was no reason why the plain meaning of Section 4(d) should not be given full effect to. His Lordships pointed out that in that case there was no prayer made for the execution of the mortgage decree against the person of the judgment-debtor or against any of his properties which were not the subject matter of the mortgage and as such the observation made in that case on the question of personal liability was obiter and had no binding force. His Lordship further held that Section 4(d) of the Land Reforms Act, on vesting in the State of all properties given in mortgage under the document, stood as a bar against a proceeding in Civil Court for the realization of the money advanced to the outgoing landlord on the security of those properties and in that view of the matter, the executing court was right in passing the order which it did on 23rd December 1954, and at least on merit the order passed contrary to it on 20th April, 1955, was not consistent with Section 4(d). On those grounds the order dated 20th April, 1955 of the executing court was set aside and the application in revision was allowed. This decision, no doubt, supports the contention made by learned Counsel for the petitioner, but the matter does not end there and there was an appeal against that decision in the Supreme Court. I will refer to the decision of the Supreme Court at a later stage, as there is another decision of this Court prior to that of the Supreme Court.

13. Two cases, namely, Mahanth Sukhdeo Das v. Kashi Prasad Tiwari 1958 B.L.J.R 559 and Shrideo Mishra v. Ramsewak Singh were heard together and the decision in the miscellaneous appeal of Shrideo Mishra v. Ramsewak Singh is relevant for the purpose of the present case. The question referred to the Full Bench in that Miscellaneous appeal was as to whether under the provisions of the Bihar Land Reforms Act a decree-holder mortgagee of the interest
of proprietor whose estate had vested in the State of Bihar under Section 3 of the said Act was entitled to proceed against the bakast lands of the proprietor comprised in the said estate for recovery of his mortgage decree. The final mortgage decree passed in that case was executed on 2-5-1955 in Execution Case No. 14 of 1955, but on 1-1-1956 the estate which was the subject matter of the simple mortgage vested in the State of Bihar under the provisions of Section 3
of the Bihar Land Reforms Act. On 22-2-1956 the judgment-debtor filed an objection under Section 47 of the Code of Civil Procedure to the effect that further proceedings in the execution case must be dropped by reason of the provisions of Section 4(d), but this objection was overruled by the Subordinate Judge, inasmuch as, the decree-holder intended to proceed against the bakast land only in execution of his decree. In other words, the Subordinate Judge had held that the decree-holder was entitled to proceed against the bakast lands, as those lands were saved from the vesting and the intermediary was entitled to retain those lands as being in his possession. Being aggrieved by the said order the Judgment-debtor had filed that miscellaneous appeal. The contention on his behalf was that the interest of a mortgage and the proprietor’s interest having been transferred to the State, the mortgage was extinguished and the only remedy left to the mortgagor was that as provided for in Section 14 of the Bihar Land Reforms Act and he had no right to sue on the basis of his mortgage. The argument was
that a case of that nature was covered by Section 4(d). Mr. Lal Narain Sinha (who appears for the petitioner in the present case before us) for the respondent in that miscellaneous appeal advanced an argument that the mortgage could not be said to have been destroyed as a result
of the vesting of the estate under the Land Reforms Act and it became inoperative only upon such properties which no longer belonged to the mortgagor. With regard to Section 4(d), he contended in that case that it only provided that the suit or proceeding should be dropped in respect of the estate as such which had vested in the State and the provisions of that Section had no application to properties which still remained with the mortgagor. He resisted the contention of the appellant that Section 14 of the said Act was the only remedy then left with the creditor and according to him, it was open to the creditor either to make use of the provision of Section 14 of the Land Reforms Act or to execute his decree by pursuing the properties of the mortgagor which had not vested in the State. This contention was accepted and the following passages are relevant:

I think the contention of Mr. Lalnarain Sinha is well-founded and must be accepted as correct. That Section 4(d) of the Land Reforms Act has not the effect of destroying the entire mortgage and does not bar the entire remedy of the mortgagee is plain enough. It is well to remember that this Act deals only with the interest of proprietors or tenure-holders. So far as the occupancy holdings of raiyats are concerned, they are outside the scope of this Act.

Now, suppose a person has borrowed money on the security of 100 bighas of his kasht land and a fractional share of proprietary interest which fetches only a nominal income. On the enforcement of this Act the proprietary interest will now vest in the State. The occupancy holdings, however, will remain with the tenants. Now can it be said that the mortgagee cannot enforce his mortgage against the raiyati lands; I think the answer is an emphatic no. There is nothing in this Act, to bar the remedy of the mortgagee to enforce his mortgage against the raiyati lands.

It is true that the proprietary share is no longer available by virtue of Section 4(d) since the estate has vested in the State free from encumbrances. There is no law, however, to debar a mortgagee from realising his mortgage debt from the lands which did not vest in the State under the provisions of the Act. In such a situation one cannot force the mortgagee to seek his remedy as provided in Section 14 of the Land Reforms Act and to satisfy his mortgage debt out of the compensation payable under the Act.

It is sufficiently obvious that in such a case the option rests with the mortgagee either to proceed against the property not covered by this Act or against compensation payable under this Act in the manner laid down therein. It is for him to decide what course will best serve his purpose. But, I see no warrant for the contention that he must be forced to pursue the remedy provided in the Act. The resultant injustice from such a construction is too clear to require a detailed discussion.

* * *

In my considered opinion, the effect of Section 4(d) read with Section 3 and 6 (blurred) of the Act is not to destroy the mortgage in its entirety, (blurred) but only with respect to that part of the estate (blurred) which has vested absolutely in the State and no interest therein is left with the mortgagor proprietor or tenure-holder. In other words, the mortgage remains operative so far as the lands covered by the provisions of Section 6 are concerned as also the lands not coming within the mischief of the Act such as the original raiyati lands.

Judged in this light, I think the decision of this Court in the case of Raghubir Saran Rastogi v. Kaviraj Basudevanand 1953 B.L.J.R 563 is right and furnishes complete answer to the contention raised by Mr. Sahay, and any other decision which is contrary to the construction I have put upon Section 6 and to the ruling in that case, in my opinion is not correct;….Mr. Baldeo Sahay (for the appellant in that case) relied on Gauri Kumari Devi v. Krishna Prasad 1957 B.L.J.R 201 but he did not question the correctness of the decision in Raghubir Saran Rastogi v. Kaviraj Basudevanand 1953 B.L.J.R 563. He however, pointed out that the learned Judges, who decided the case of Gauri Kumari Devi had distinguished the decision in the case of Raghubir Saran Rastogi, but the Full Bench took the view that there was no valid ground of distinction between the case of Raghubir Saran Rastogi and that of Gauri Kumari Devi. Mr. Lal Narain Sinha had further contended in that case that there was no reason to hold that the principal underlying substituted security should be excluded from consideration while dealing with the provisions of the Bihar Land Reforms Act and according to him, Section 42B of that Act was no bar to the application of that principle and the said Act should be held to contemplate the doctrine of substituted security. Their Lordships dealt with this contention and after referring to various provisions of that Act held that a mortgagee was, no doubt, entitled to recover his money out of the compensation, but the Act did not compel him to recover the money by that procedure alone and he was not deprived of his normal remedy to recover his debt. Their Lordships held that the decision in Rastogi’s case 1953 B.L.J.R 802 F.B. laid down the correct law and, accordingly, they affirmed that decision whereas they overruled the decision in Gauri Kumari Devi’s case 1957 B.L.J.R 201. In the result, their Lordships answered the question referred to the Full Bench in the affirmative. The effect of this Full Bench decision is that the mortgage debt is not extinguished, but the remedy of the mortgagor so far as the vested estates are concerned, is to proceed under Section 14 of the Bihar Land Reforms Act and he is entitled to the amount of compensation payable for the vested estates for the realisation of his dues. The view taken by the Division Bench in Gauri Kumari Devi’s case 1957 B.L.J.R 201 was not accepted as correct by their Lordships in that Full Bench decision. It is true that the question of executing a personal decree against the mortgagor did not arise in the case before the Full Bench, but the execution against the bakast lands was permitted on the footing that the mortgage still subsisted and the mortgage debt could be realised by the sale of the bakasht lands which were comprised in the estate which had vested. In other words, the remedy of the mortgagee decree-holder was not confined only to the amount of compensation payable in respect of an estate which had vested.

14. The provisions of Section 4(d) were interpreted by the Supreme Court as well in Krishna Prasad v. Gauri Kumari Devi 1962 B.L.J.R 532 and the decision in that case being
interparties, both parties have relied on this decision in support of their respective cases. The decree which is the subject matter of execution at the present stage was (blurred) being executed earlier and the facts giving rise to the present application in revision were the facts which gave rise to that appeal before the Supreme Court except with this difference that after the decision of the Supreme Court the decree-holders took some further steps to realise their dues on the basis of the mortgage bond. Their Lordships took note of some material facts before dealing with the provisions of the Bihar Land Reforms Act. The first material fact was that the entire mortgaged property (mentioned in the mortgage bond dated 10-7-1937) belonging to the mortgagor proprietor had vested in the State of Bihar. The second material fact was that the mortgage decree in question clearly and unambiguously provided that the decree-holders would be justified in executing personal decree against the Judgment-debtor only, if and after they had exhausted their remedy against the mortgaged property and were not able to recover whole of the decretal amount by that process. The third facts was that after the vesting of the mortgaged property in the State of Bihar the decree-holders had applied under Section 14 of the Land Reforms Act notifying their claim under the mortgage decree to the Claims Officer, and, in fact, on the 24th November, 1956, the Claims Officers had determined that a sum of Rs. 58,100/- plus future interest at 4 per cent per annum over the principal amount only but limited to the total interest not exceeding the amount of the principal, would be payable to the decree-holders out of the compensation amount payable to the Judgment-debtor in respect of the properties mortgaged. On these facts their Lordships proceeded to decide whether the High Court was right in holding in Gauri Kumari Devi v. Krishna Prasad 1957 B.L.J.R 201 that the decree-holders’ application for execution at that stage was incompetent in view of the provisions of Section 4(d) of the said Act. Thereafter, their Lordships referred to the relevant provisions of the Bihar Land Reforms Act for construing Section 4(d) and determining its scope and effect. Mr. L.K. Jha for the decree-holders had raised a contention that in construing the words of Section 4(d), it was necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests and according to him, it was not the object of the Act to extinguish debts due by the proprietors or tenure-holders, but this argument was repelled with the observation that it proceeded on an imperfect view of the aim and object of the Act. Their Lordships pointed out that it was true one of the objects of the Act was to provide for the transference to the State of the estates as specified. But apart from that the provisions contained in Section 16 in regard to the scaling down of the debts due by the proprietors and tenure-holders clearly indicated that another object which the Act wanted to achieve was to give some redress to the debtors whose estates had been taken away from them by the notifications issued under Section 3 and in construing Section 4(d), it was not right to assume that the interests of the debtors affected by the provisions of the Act did not fall within the protection of the Act. Mr. Jha in advancing the argument had not noticed that the object of the Act was to give some relief to the debtors and as such this object also was pointed out by their Lordships. Later on, the decision indicates that Mr. Jha had fairly conceded that if the words used in Section 4(d) were literally construed and were given their natural grammatical meaning, it was not easy to limit the operation of that Section to execution proceedings where relief was claimed against the properties which had vested in the State. This concession, however, has no relevancy and the actual decision has to be followed. After referring to this concession, their Lordships observed thus:

The relevant clause in Section 4(d) provides that all suits and proceedings for the recovery of any such money which may be pending on the date of the vesting shall be dropped; and these words are wide enough to include within their sweep execution proceedings, even though the recovery of the amount due may have been claimed by the decree-holder from properties other than those which have vested in the State. The only limitation imposed by the clause is that the execution proceedings should be for the recovery of any such money-meaning any money due from the proprietor on the strength of a mortgage executed by him in respect of an estate.

The language employed in Section 4(d) has no doubt a wider implication, but their Lordships themselves pointed out the limitation referred to above meaning thereby that the proceedings for the recovery of money due from a proprietor or tenure-holder the payment of which was secured by a mortgage of an estate which had vested will have to be dropped. After making the said observations, their Lordships did not think it necessary to consider as to what would be the effect of the provisions of Section 4(d) in cases where the part of the mortgage property was an estate and part was not. The other question which was unnecessary to consider was whether Section 4(d) would create a bar even in cases where the compensation amount payable to the mortgagor is insufficient to satisfy the mortgagee decree-holder’s claim even to the extent of the amount scaled down under Section 16. At that time it was not known as to how much the mortgagor would be able to get as compensation in respect of the mortgaged properties and therefore the question referred to above was left open. Their Lordships were satisfied that on the facts before them, the High Court was right in holding that the application made by the appellants (decree-holders) to execute the decree against the respondent (Judgment-debtor) by proceeding against her non-mortgaged property was incomplete at that stage. Thereafter, their Lordships held as follows:

The amount due to the appellants under the decree in question has been already determined by the Claims Officer and the appellants must first seek to recover that amount in the manner as provided by the relevant provisions of the Act before they proceed to execute the personal decree.

This conclusion follows even on the terms of the decree itself. We have already seen that the direction issued by the trial court is explicit and clear. The said direction which is consistent with the provisions of Order 34, Rule 6 would enable the appellants to proceed personally against the respondent only if it is shown that the decretal amount is not fully-satisfied from the proceeds of the mortgaged property. In the present case, the mortgaged property cannot be sold because it has vested in the State free of incumbrances; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and the appellants are given the statutory right to receive the amount due to them from the said compensation amount under Section 24(5). This provision is some-what similar to the provision of Section 73(2) of the Transfer of Property Act which provides, inter alia, that where the mortgaged property is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage money, in whole or in part, out of the amount due to the mortgagor as compensation. In a sense, the compensation amount payable to the respondent may prima facie be treated to be like a security substituted in the place of the original mortgaged property under Section 73(2) of the Transfer of Property Act, However that may be, the terms of the decree require that the appellant must first, seek their remedy from the said compensation amount before they proceed against the non-mortgaged property of the respondent. The relevant directions in the decree do not justify the appellants’ contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under Section 24(5) of the Act.

These observations clearly indicate that the decree-holders had a right to execute the personal decree against the Judgment-debtors, but only after recovering their dues as far as possible in respect of the mortgage bond as provided by the relevant provisions of the Bihar Land Reforms Act. In other words, their first remedy was to recover their dues out of the amount of compensation and thereafter it was open to them to execute the personal decree for the balance. Their Lordships indicated the correct procedure which the decree-holders had to adopt in a case where the entire mortgaged property had vested in the State. Their Lordships referred to the two decisions of this Court in Raghubir Saran Rastogi v. Kaviraj Basudevanand 1953 B.L.J.R 563 and Mahanih Sukhdeo Das v. Kashi Prasad Tiwari 1958 B.L.J.R 559 but did not pronounce any opinion with regard to the correctness or otherwise of the views taken in those decisions. Ultimately, their Lordships dismissed the appeal and affirmed the order passed by the High Court in Gauri Kumari Devi v. Krishna Prasad 1957 B.L.J.R 201.

15. The aforesaid decision of the Supreme Court in Krishna Prasad v. Gauri Kutnari Devi 1962 B.L.J.R 532 was considered by this Court in Anup Singh v. Ajodhya Prasad alias Lal Baboo 1962 B.L.J.R 612 F.B. The decree-holder Anup Singh had obtained a final mortgage decree on 15-9-1955 and he was executing that decree, but meanwhile a notification under Section 3 of the Bihar Land Reforms Act was issued on 1-1-1956, by which all the milkiat property which was the subject matter of the mortgage vested in the State Government. On 28-5-1956 the ‘ execution case was dismissed on account of the bar imposed by Section 4(d) of the Bihar Land Reforms Act. Subsequently, the decree-holder filed an application for grant of a personal decree under Order 34, Rule 6, of the Code of Civil Procedure, but that application was dismissed by the order of the Additional Subordinate Judge and hence the decree-holder preferred an appeal against that order. The question which fell for consideration by the Full Bench was as to whether in the circumstances of that case the decree-holder should 1 proceed first under Section 14 of the Bihar Land Reforms Act before applying to the civil court for a personal judgment under Order 34, Rule 6, of the Code of Civil Procedure? Their Lordships pointed but that the precise point arising before them was the subject matter of consideration by the Supreme Court in Krishna Prasad v. Gauri Kumari Devi 1962 B.L.J.R 532 and relying on that decision they held that the decree-holder appellant should proceed at first to avail himself of the remedy under Section 14 of the Bihar Land Reforms Act before he could apply to a civil court for a personal decree under Order 34, Rule 6. The question referred to was answered in this manner. This was a case where all the mortgaged properties had vested and, therefore, their Lordships took the view that the first remedy of the mortgagee decree-holder was to apply under Section 14 before taking re course to the provisions of Order 34, Rule 6. If the contentions raised by learned Counsel for the petitioner in the present case were correct, the Full Bench would have taken the view that the question of a personal decree did not arise at all and the only remedy of the decree-holder mortgagee was to avail himself of the benefit under Section 14 of the Bihar Land Reforms Act and the application for personal decree c6uld have been dismissed in limine on that ground alone, but the decision was otherwise, as referred to above. Learned Counsel for the petitioner Submitted that’ their Lordships while
deciding the case of Anup Singh 1957 B.L.J.R 612 B.F. had no doubt foll6wed the decision of the Supreme Court in Krishna Prasad v. Gauri Kumari Devi 1962 B.L.J.R 532 but the question of personal decree was not relevant in the case of Anup Singh; He tried to distinguish the decision of the Full Bench on this score. I find it difficult to accept this contention. The application of the decree-holder for a personal decree had been dismissed by the Additional Subordinate Judge and hence he had filed an appeal in the High Court. A question directly arose as to whether he could apply for a personal decree under Order 34, Rule 6 and their Lordships held that that remedy was available, but after exhausting the remedy provided by Section 14 of the Bihar Land Reforms Act. Their Lordships were quite conscious that in the case
of Krishna Prasad 1962 B.L.J.R 532 as well the entire property covered by the mortgage deed had vested in the State of Bihar, but even then, the Supreme Court directed that the personal decree could be executed at a later stage only after exhausting the remedy provided under Section 14 of the Bihar Land Reforms Act.

16. The said decision of the Supreme Court in Krishna Prasad v. Gauri Kumari Devi 1962 B.L.J.R 532 was considered
in the case of Kedar Prasad Singh v. Sita Saran Singh 1963 B.L.J.R. 198 and Mahapatra, J, (in concurrence with me) observed thus :–

The observations made by the Supreme Court in regard to executing the personal decree against the Judgment-debtors after availing of the provisions of Bihar Land Reforms Act for recovery of the mortgage claim are applicable to a case where the mortgagee is equipped with a decree of that nature before the Act came into force….

In the present case the mortgagees obtained the personal decree before the Land Reforms Act came into force and it is that very decree which is being executed against the properties which were not subject to the mortgage.

17. Learned Counsel for the petitioner placed reliance on Sidheshwar Prasad Singh v. Ram Saroop Singh 1963 B.L.J.R. 802 F.B. for showing as to how their Lordships while deciding this case of Sidheshwar Prasad Singh had interpreted and understood the decision, in Krishna Prasad v. Gauri Kumari Devi 1962 B.L.J.R. 532. Two cases meaning thereby a miscellaneous appeal and a second appeal were heard together by the Full Bench. The facts giving rise to the miscellaneous appeal were that the respondents having obtained a final mortgage decree filed an application for execution of the same in the year 1953, but subsequently the estate mortgaged vested in the State on 26-1-1955. On 25-7-1955 decree holders respondents filed an application under Section 14 of the Bihar Land Reforms Act and in view of that application they did not prosecute the execution case with the result that that case was dismissed for default on 27-9-1955. Later on, they changed their mind, took no step in the claim case and
that was also dismissed for default on 5-12-1956. Thereafter, the decree holders filed another execution case on 29-7-1959 for recovery of the mortgage debt by sale, not of the milkiat interest, which having vested in the State, was no longer available, but of the bakasht land comprised in the said milikiat. One of the objections on behalf of one of the judgment debtors was that the execution was barred under Section 4(d) of the Bihar Land Reforms Act and the second objection was that the decree holders having proceeded under Section 14, they were precluded from executing the mortgage decree in civil court. The facts giving rise to the second appeal were that there was a simple mortgage in favour of the plaintiffs ancestor in respect of an estate consisting of cash collections and bakasht lands and after the vesting of that estate on 1-1-56 the mortgagee filed before the claim officer an application under Section 14 for determination of the amount of the mortgage debt, which the claims Officer eventually did. The amount so determined was recoverable out of the compensation money payable under that Act. The plaintiffs, however, ignored the order presumably because the amount determined was not sufficient to satisfy the entire mortgage debt and filed the suit giving rise to that appeal for enforcement of the mortgage against the bakasht lands on the ground that they had abandoned their claim under the Bihar Land Reforms Act and did not want to enforce the order of the Claims Officer. On those facts the question before the Full Bench was whether the previous decision of the Full Bench in the case of Mahanth Sukhdeo Das v. Kashi Prasad Tiwari 1958 B.L.J.R. 559 that Section 4(d) of the said Act did not operate as a bar to a suit or proceeding to recover money secured by a mortgage of or charge on an estate or tenure by sale of the bakasht lauds comprised in such estate or tenure after such estate or tenure had vested in the State of Bihar had been overruled by the Supreme Court in the case of Krishna Prasad 1962 B.L.J.R. 532. The majority view was expressed by Kanhaiya Singh, J. and his Lordship noted in paragraph 12 the following basic propositions which were laid down by the Full Bench in the case of Mahanth Sukhdeo Das 1958 B.L.J.R. 559:

(1) that mortgage is not necessarily completely destroyed as a result of the vesting of the estate under the provisions of the Bihar Act;

(2) the mortgage debt is not barred, but remains alive, even, after the vesting;

(3) The mortgage security is destroyed only in respect of the interests that have vested in the State without reservation, and not in respect of other interests;

(4) the intermediaries become statutory tenants in respect of the bakasht lands, because such lands, though comprised in an estate, are deemed to be settled by the State with the intermediaries; and

(5) thus, bakasht lands are available to the mortgagee on the basis of substituted security or accession to the mortgaged property.

His lordships held that the main proposition laid by the Full Bench aforesaid, namely, that bakasht lands must be differentiated from the estate proper that had vested in the State without reservation and were retained by the landlord though in an altered character was not at all effected by the decision of the Supreme Court in the case of Krishna Prasad. Thereafter, his Lordship referred to the facts of the case of Krishna Prasad 1962 B.L.J.R. 532 and observed thus:

In substance, their Lordships have laid down that where the whole of the property mortgaged constituted an estate and has vested in the State, Section 4(d) bars a suit to enforce the mortgage, or execution proceeding to recover the mortgage decree by sale, not only of the properties which had vested in the State but also of other properties belonging to the mortgage.

Learned Counsel for the petitioner laid great stress on the passage quoted above and submitted that the Full Bench had rightly interpreted the decision of the Supreme Court in Krishna Prasad’s 1962 B.L.J.R. 532 case meaning thereby that if the entire mortgaged estate vested in the State, then Section 4(d) barred an execution proceeding to recover the mortgage debt by sale even of other properties belonging to the mortgagor. With great respect, I cannot attach this meaning to the decision of the Supreme Court in the case of Krishna Prasad 1962 B.L.J.R. 532 and if this were the meaning and the view of their Lordships, they would not have given the liberty to the decree holders Krishna Prasad and others to execute the personal decree after the receipt of the compensation money. If the view of their Lordships was that the mortgagee decree holders could not proceed against the other properties, they would not have indicated as referred to above. I am thus of the opinion that the view expressed by Kanhaiya Singh, J. in the passage quoted above and relied upon by learned Counsel for the petitioner cannot stand in the way of the mortgagee decree holders in enforcing their claim on the basis of the personal decree passed in their favour. Resides this the point which actually arose for consideration by the Full Bench was as to whether the decree holder would proceed against the bakasht lands comprised in the milkiat and it was not at all necessary to consider the right of the decide holder to proceed against the other properties belonging to a mortgagor. The majority view was that the decree holders in both the appeals were entitled to recover the mortgage debt by sale of the bakasht lands. In the miscellaneous appeal it was held that there was not a final election to proceed under the Bihar Land Reforms Act for recovery of the mortgage dues and consequently, the decree holders were not precluded from changing their mind and prosecuting the execution proceeding in a court of law. In the second appeal there was a final election and thus the mortgagee were debarred from seeking an alternative remedy in the civil court. It was held that the suit brought by them in the civil court was, therefore, not maintainable. There was no departure from the basic propositions laid down by the Full Bench in the case of Mahanth Sukhdeo Das 1958 B.L.J.R. 559. I am of the view that this Full Bench decision in Sidheshwar Prasad’s 1962 B.L.J.R. 802 F.B. case is not of any assistance to the petitioner.

18. Learned Counsel for the petitioner referred to another decision of the Supreme Court in Sailendra Narayan Bhanj Deo v. Jagat Kishore Prasad Narayan Singh 1962 B.L.J.R. 507 but the appeal there arose out of a suit for redemption of certain mortgage. The suit was decreed by the trial court and that decree was affirmed by the High Court at Patna and then there was an appeal to the Supreme Court. It was held that after the vesting of the estate which was the subject matter of mortgage, redemption decree could no more be given effect to, inasmuch as, the mortgage tenures had vested in the State of Bihar free from all
incumbrances. Their Lordships observed that the tenures having vested in the State absolutely, the mortgagee had no longer any interest in the tenure nor was he in possession of them and as such he could not carry out the decree by reconveying the tenures to the mortgagor or put him into possession. Another observation was that the mortgage as security had ceased to exist, for the mortgage property vested in the State of Bihar under the Act free from all incumbrances and the mortgagor in his turn also ceased to be entitled to the mortgaged property and hence he had no right to redeem them. In that view of the matter, the decree for redemption previously passed became infructuous. If there is a mortgage of the estate or tenure and the said estate or tenure vests in the State in accordance with the provisions of the Bihar Land Reforms Act, then there can be no doubt that the mortgage as a security ceases to exist. It has, however, to be kept in view that the mortgage security is destroyed only in respect of the estate or tenure which has vested in the State, but it does not mean and cannot mean that the mortgagee cannot proceed against the other properties of the mortgagor for realisation of the personal decree already obtained by him. The decision relied upon by learned Counsel for the petitioner is not relevant for the present purpose as the question of executing the personal decree did not arise in that case.

19. Learned Counsel for the petitioner referred to a recent decision of the Supreme Court in Raj Kishore Prasad Narayan Singh alms Skri Krishna Vallabh Narayan Singh v. Ram Pratap Pandey 1967 B.L.J.R. 331. The appellant in that case had filed an application under Section 14 of the Bihar Land Reforms Act in respect of the deed of mortgage (Ext. 1). The claims Officer determined the claim, but there was an appeal by the respondents before the Board constituted under Section 18(1) of that Act, The claim appeal involved a claim exceeding Rs. 10,000/- and as such the Board consisted of a Judge of the Patna High Court. The appellant filed an application before the Board for permission to withdraw the claim case preferred by him before the Claims Officer and requested that further proceedings in the claim appeal, filed by the respondents be dropped, inasmuch as, he wanted to follow another remedy, which was permitted by law. That application was dismissed by order dated December 7, 1959. At the hearing of the claim appeal, the appellant again reiterated his request to withdraw his claim application, but it was turned down on the ground inter alia that the mortgagee having chosen his remedy by having recourse to the procedure under the said Act, he was bound to it and he could not resile from that position. Ultimately, the claim appeal filed by the respondents was allowed and the claim application filed by the appellant was dismissed. The appellant then filed an appeal by special leave and one of the contentions on his behalf was that the view taken by the learned Judge that the appellant, having filed a claim petition under Section 14 must be considered to have adopted the remedy available to him under the Act and, as such, he was not. entitled to proceed under the general law as against the properties which had not vested in the State under that Act, to enforce his mortgage claim, was not. correct. With regard to the refusal of the application for the withdrawal of the claim application, the argument was that the appellant had a right to seek relief under the general law to enforce his mortgage claim in respect of the properties which had not vested in the State and the appellant was not in any way prohibited from seeking that relief. Their Lordships referred to the decisions in Raja Sailendra Narayan Bhanj Deo v. Kumar Jagat Kishore Prasad Narayan Singh 1962 B.L.J.R. 507 and Krishna Prasad v. Ganri Kumari Devi 1962 B.L.J.R. 532 respectively and observed thus with regard to the conclusions arrived at by the Supreme Court in the latter case :–

Ultimately, this Court held that without having recourse to the remedy provided under the Act, a creditor had no right to execute a personal decree as against the non mortgaged properties. This Court also held that inasmuch as the whole of the mortgaged properties in that case was an estate, it was unnecessary to consider what would be the effect of the provisions of Section 4(d) in case where part of the mortgaged property is an estate and part is not. In that decision, this Court also observed that it was unnecessary to consider whether Section A (d) would create a bar, even in cases where the compensation amount payable to the mortgagor is insufficient to satisfy the mortgagee decree holder’s claim even to the extent of the amounts scaled down under Section 16.

From the principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed, in order that the amount due to the creditor should be determined by the Claims Officer and the decision of the Claims Officer or the Board has been made final by the Act.

Thereafter, their Lordships posed the question as to what would be the petition, when the mortgage comprised not only the property which had vested in the State under the Act but also took in other items of properties which were outside the purview of the Act? Another question formulated was whether the mortgagee still under those circumstances was bound to apply to the Claim Officer and follow the procedure indicated by the said Act? These questions according to their Lordships were not decided in Krishna Prasad’s case 1962 B.L.J.R. 532. Learned Counsel for the petitioner relied on the passages quoted above and submitted that the consistent view of the Supreme Court was that where whole of the property mortgaged was an estate and had vested the mortgagee had no remedy other than to follow the procedure prescribed by Chapter IV of the Bihar Land Reforms Act which commenced with Section 14 giving a right to a creditor to notify his claim in writing in the prescribed manner. There can be no doubt that if the entire estate or tenure mortgaged has vested in the State then the mortgagee has to take recourse to the provisions of Section 14, but it does not mean that he cannot execute a personal decree as against the non-mortgaged properties. This right of the creditor was recognized even by the Supreme Court in Krishna Prasad’s case 1962 B.L.J.R. 532 and the first time of the first passages, quoted above, refers to this right of the creditor. Their Lordships held in this recent case that the prohibition contained in Sections 4(d) and 35 of the said Act must also relate only to matters which could form properly the subject of a claim or an adjudication under that Act. Their Lordships further observed (see 1967 B.L.J.R. 331 at p. 343) as follows:

We are further of opinion that, while in respect of the estates which have vested in the State under the Act, the mortgagee will be bound to have recourse to the procedure laid down in the Act, so far as his mortgage takes in other properties, his right to enforce his claim under the ordinary law, has not been, in any manner, infringed or taken away by the Act. If that is so, it follows that in this case the appellant, notwithstanding the fact that he had filed a claim under Section 14 of the Act, with reference to properties which have vested in the State, is entitled to avail himself, of any other remedy open to him in law, to enforce his claim as against the non-vested properties comprised in the mortgage.

In the result, the appeal was allowed and the claim petition was permitted to be withdrawn, as prayed for by the appellant. The question of execution of a personal decree did not arise even in this case of Raj Kishore Prasad Narayan Singh 1967 B.L.J.R. 331 and accordingly it cannot support the contention of learned Counsel for the petitioner. The position thus is that it has been repeatedly-laid down that Section 4(d) could bar a suit or an execution proceeding only in respect of an estate or tenure which has vested in the State and the remedy of the mortgagee to recover his dues from those estates or tenure was provided in Chapter IV of the said Act.

20. After having dealt with the decisions, cited before us and keeping the principles laid down in those decisions in view, it is essential to consider the circumstances in which the provisions of Section 4(d) can be attracted. Before understanding the true import of this Section, the various clauses can be taken into account separately in the following manner:

(i) The payment of money should be secured by a mortgage of or is charge on an estate or tenure,

(ii) Such estate or tenure has vested in the State in pursuance of the notification issued under the provisions of the Bihar Land Reforms Act.

(iii) That money should be due from such proprietor or tenure whose estate has vested.

(iv) If these requisites are fulfilled then and then alone either a suit shall not lie in any civil court for the recovery of that money and a suit or proceeding pending for the recovery of that money has to be dropped.

In other words, such money cannot be recovered from the vested estates by institution of a suit or an execution proceeding in civil court and a mortgagee cannot proceed in the civil court against the vested estates. Section 4(e) of the same Act further provides that no such estate or tenure shall be liable to attachment or sale under the processes of any court and any order of attachment passed in respect of such estate or tenure before the date of vesting shall cease to be in force. Here also the reference is to the estates and tenures which had vested in the State. The real object for enacting Section 4(d) was that after the vesting of an estate which was subject to a mortgage or charge, the mortgagee creditor could not seek his remedy against that estate in civil Court for the simple reason that the interest of the proprietor or tenure holders also had vested and another remedy was provided for in Section 14. I do not find any thing in Section 4(d) which prohibits a decree holder from enforcing the personal decree already obtained by him against the mortgagor.

21. Turning to the various provisions of the Bihar Land Reforms Act, the position is that Chapter IV includes Sections 14 to 18 and according to Section 14 a creditor may notify his claim in writing in the prescribed manner before the Claims Officer for the purpose of determining the amount of debt legally and justly payable to him which is secured by a mortgage of or incharge on, any estate or tenure which has vested in the State. The claim has then to be determined in accordance with the provisions of Section 16 and the debtor is entitled to relief as provided therein. Chapter V deals with the assessment of compensation and Section 24(5) of the same chapter provides that if the interest of a proprietor or tenure holder is subject to a mortgage or charge, the compensation shall first be payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure holder concerned. All these provisions are with
regard, to the vested estates and tenures, but they have nothing to do with such properties which do not vest in the State.

22. Mr. Lal Narayan Sinha for the petitioner submitted that the Land Reforms Act was a self contained Act and if the entire estate which was subject to a mortgage had vested, then the mortgagee could not enforce his rights under the mortgage in the civil court and he could not get anything more than the amount of compensation available in respect of the mortgaged properties. In support of it, lie once again referred to the decision of the Supreme Court in Krishna Prasad v. Gauri
Kumari Devi 1962 B.L.J.R. 532 and relied on the following passage occurring at page 537:

Chapter VI deals with the payment of compensation, and Section 32 provides for the manner of its payment. Thus the scheme of Chapters IV, V & VI is clear. The provisions in the said Chapters constitute an integrated and self sufficient Code for the determination of the amount due to the creditors in question and for their payments, and so Section 35 which occurs in Chapter VIII prescribed a bar to the jurisdiction of Civil Courts in the matters included in it. Under this Section, no suit shall be brought in any Civil Court in respect of any entry in or omission from a compensation Assessment Roll or in respect of any order passed under Chapters II to VI or concerning any -matter which is or has already been the subject of any application made or proceedings taken under the said Chapters. There can, therefore, be no doubt that the scheme of the Act postulates that where the provisions of the Act apply, claims of creditors have to be submitted before the Claim Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting a suit or any other proceedings in the court of ordinary civil jurisdiction.

In. my opinion, the bar to the institution of a suit or any other proceedings in the civil court pointed out by their Lordships in the last line of the passage, quoted above, was with reference to the estates or tenures which had vested in the State and not to properties which were outside the scope of that Act.

23. Learned Counsel for the petitioner further relied on the following clause in Section 24(5) of the said Act:

…The amount of compensation payable to a creditor on account of such mortgage or charge shall be the amount determined under Chapter IV which, notwithstanding anything contained in any law for the time being in force, shall not in any case exceed the amount of compensation payable in respect of the estate or tenure or portion thereof which is subject to such mortgage or charge, and where there are two or more such creditors the compensation shall be payable to them in the order determined under the said Chapter.

He contended that according to this clause a creditor could not get anything more than the amount of compensation available in respect of the estate or tenure which was subject to mortgage or charge. In the instant case, the amount payable as compensation was only Rs. 22,419/-and odd and it was undoubtedly very much less than the amount (Rs. 58,100/-) determined as due to the creditor by the Claims Officer under Section 16. But according to him, the creditor had to content himself by getting only the said amount of compensation and he had no right at all to realise the balance from any property whatsoever. It was submitted that this was in reality the effect of the aforesaid clause occurring in Section 24(5). In my opinion, this contention cannot be accepted. The first part of Section 24(5) provided that the compensation shall first be payable to the creditor who held a mortgage or charge in respect of an estate or tenure and the second part meant that the amount of compensation which is payable to a creditor on account of his mortgage or charge of and on ah estate respectively will, not exceed the amount of compensation which might be available in respect of that estate or tenure. In other words, it does not mean that if the amount determined as due is much more than the amount of compensation available then the claim of the creditor is further scaled down and reduced and he must forego his either remedies in respect of the balance which, remains due after receiving the amount of compensation only. Their Lordships pointed out in the same decision in Krishna Prasad v. Gauri Kumari Devi 1962 B.L.J.R. 532 that this provision, Section 24(5), was in a sense, consequential and it provided far the payment of the amount already determined to be justly and legally due to the creditor and so, a claim which was made under Section 14 would be determined under Section 16 and the amount so determined should be paid under Section 24(5).

24. Another contention raised by learned Counsel for the petitioner was that the order of the Claims Officer was not at all a decree, there was no provision in the Bihar Land Reforms Act providing that the said order will have the force of a decree, and as such, it was not at all open to the mortgagees decree-holders to execute the said order. He pointed out that there was no provision in the said Act for execution of the said order and the Act being an integrated one, the mortgagees could avail themselves only of such remedies as were to be found within the four corners of that Act. He relied on Secy, of State v. Kameshwar Singh Bahadur A.I.R. 1936 Pat. 87. The suit giving rise to that appeal was instituted by the plaintiff against the Secretary of State for India in council and the Chairman of the District Board of Purnea for recovery of the compensation permissible under Section 17 of the Bengal Ferries Act. (1 of 1885). The main defence was hat the plaintiffs had no cause of action and the civil court had no jurisdiction to entertain the suit. Dealing with this contention, their Lordships observed that even assuming that the right to receive compensation existed independently of that Act and that Act only affirmed it and provided a peculiar form of remedy, that remedy was exclusive as the claim for compensation was to be investigated by a particular officer and on a particular basis and the jurisdiction of the civil court was barred by necessary implication. Section 17 of that Act gave authority to a Magistrate to ascertain the average net profit and he had ample power to investigate the nature of the income of the plaintiff. It was held that there being no irregularity in the proceeding before him, his order could not be revised even if he made an error of fact in coming to his conclusion. In view of those considerations, the suit was held to be not entertainable in the Civil Court. This decision is of no avail to the petitioner inasmuch as by execution of the personal decree obtained by the decree holders (mortgagees) they are not trying to challenge in any manner the order of the Claims Officer passed under Section 16 or the order of the Compensation Officer determining the amount of compensation in respect of the estate which has vested. He further referred to Subodh Gopal Bose v. Mines Tribunal Gaya 1966 B.L.J.R. 968. In that case an application under Articles 226 and 227 of the Constitution was filed to quash the order passed by the Mines Tribunal, appointed under Section 12 of the Bihar Land Reforms Act. It was held that the special remedy provided in that Act for the determination of the right under Section 9(1) would exclude the ordinary jurisdiction of the civil court. In other words, if a special statute provided a remedy that has to be resorted to and not the remedy available under the general law. I have already indicated that Section 4(d) did not restrict the right of a mortgagee to execute a personal decree, already obtained by him. No other provision of the said Act creates such a bar and the decree holders in the present case are not asking the civil court to usurp any function which was assigned to any officer under the said Act.

25. Learned Counsel for the opposite party referred to an unre-ported decision (Nawabzadi Kani Fatma v. Mohammed Yasin) S.A. 616 of 1962 decided on 27 July 1967. That second appeal arose out of a suit for a declaration that an auction sale under the Bihar and Orissa Public Demands Recovery Act in respect of a certain Mahal was void and the appellant, who was the auction purchaser did not acquire any title by virtue of the said sale in the property sold. The trial court held that the said sale was void and defendants 1 and 2 did not acquire any title. The said decree was affirmed on appeal. As a preliminary to the main contention, Mr. Lal Narayan Sinha urged that in substance the suit was for a declaration that the plaintiff was entitled to compensation for a property from the State of Bihar but he was riot entitled to it, and thereafter his main contention was that the Bihar Land Reforms Act prescribed a complete procedure for determination of the questions relating to the payment of compensation including the question as to who was an intermediary and who was entitled to the compensation payable under that Act and as such a separate suit for that purpose could not be entertained by Civil Courts. In support of that contention, Mr. Lal Narayan Sinha referred to Secy, of State v. Kameshwar Singh Bahadur A.I.R. 1936 Pat. 87 but the decision in that case was distinguished on the ground inter alia that the Bihar Land Reforms Act was a post-constitution Act and Article 31 of the Constitution of India had declared that every citizen or the country had a fundamental right to get compensation of his property which is acquired by the State. Mr. Lal Narayan Sinha had further relied in that case on the decision in Subodh Gopal Bose v. Mines Tribunal Gaya 1966 B.L.J.R. 968 but that decision was also distinguished and one ground for it was that the right under Section 9(1) of the Bihar Land Reforms Act was an inchoate and incomplete right whereas the right to receive compensation under Article 31 of the Constitution was not an inchoate right. Ultimately, it was held that the suit was maintainable in the Civil Court and the appeal was dismissed.

26. It appears from the facts of this case (already stated above) that the mortgagee decree-holders had obtained a personal decree and that decree has not been either reversed or modified by any superior Court. That decree has become final and it must bind the parties to the suit. The order under Section 16 of the Bihar Land Reforms Act passed by the Claims Officer has no doubt determined the amount due to the mortgagees, but he has not in any manner modified the personal decree passed by the Civil Court and he could not do so. The duty of the Claims Officer was to determine the amount due in respect of the mortgage bond in question and he has done so. The personal decree passed in this case was taken note of in Gauri Kumari Devi v. Krishna Prasad 1957 B.L.J.R. 201 (the case between these parties) as well and their Lordships were of the view in that case that if the properties hypothecated under the mortgage have become in opinion of the Court non-available for sale, the decree already passed for personal liability could be enforced straightway without taking any step for the sale of that property. The Supreme Court also held in the appeal of Krishna Prasad v. Gauri Kumari Devi 1962 B.L.J.R. 532 that the direction given by the trial court was explicit and clear and it would enable the appellants (decree-holders) to proceed personally against the respondent if it were shown that the decretal amount was not fully satisfied from the proceeds of the mortgaged property. These decisions were interpartes and full effect has to be given to the personal decree and it is that decree which is being executed at the present stage, but for the amount which is still unrealised even after the receipt of the amount of compensation. The object of the Land Reforms Act was no doubt to give relief to a debtor, but it never means that the credit
for would not be entitled to the sum determined by the Claims Officer as due in respect of a debt secured by a mortgage. It would neither be just nor equitable that the creditor should be left without any remedy for the realisation of the remaining dues for no fault of his. The observations of the Supreme Court also in the case of Krishna Prasad 1962 B.L.J.R. 532 are quite clear that the decree-holders could proceed to execute the personal decree. On a careful consideration of the facts and circumstances, I am of the opinion that the personal decree obtained by the mortgagee-decree-holder is executable and the executing court was right in holding that the decree-holders were entitled to proceed against the personal properties of the judgment-debtor.

27. Learned Counsel for the petitioner submitted that this Court had held in Gauri, Kumari Devi y. Krishna Prasad 1957 B.L.J.R. 201 that the execution case was not maintainable and the executing court was right in passing an order on the 23rd of December, 1954 dismissing the execution case. He further pointed out that the order of this Court was affirmed by the Supreme Court also and as such it should be held that the decree-holders had no right to execute the decree. It is true that at that stage the execution was not maintainable, but the Supreme Court itself indicated that the decree-holders had a right to execute the personal decree in certain circumstances.

28. Learned Counsel for the petitioner challenged the order of the executing court on another ground, namely, that the executing court was a transferee court and it having already communicated the result of the execution case to the transferor court, it had no jurisdiction to execute the decree. He pointed out that the executing court had passed an order No. 25 on the 23rd of December, 1954 dismissing the execution case as not maintainable and later on it communicated that result to the transferor court on the 10th of January, 1955. “The certified copy of the entries in the execution register has been marked Ext. A and in column No. 12 the result of Execution Case No. 19 of 1954 has been noted in the following words:

Dismissed as not maintainable on 2342-54.

In the remarks Column No. 22, the entry was as follows :–

Result sent on 16-1 -55″ In view of these entries, he urged that the transferee court at Gaya could not execute the decree after the communication of the result. Section 41 of the Civil Procedure Code provides as follows:

The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the; same the circumstances attending such failure.

The effect of this provision is that when the certificate is sent, the transferee court ceases to have scisin of the execution proceeding, but until a certificate is issued the
transferee court retains its jurisdiction. The certificate, however, has to be sent in a particular form and the provisions of this Section have to be strictly complied with. In the present case, there was no order in the ordersheet of the execution case to the effect that any certificate should be sent to the transferor court at Patna and in fact no certificate was prepared for being sent to the transferor court. It was pointed out in Prahlad Prasad Mahrotra v. Thakur Prasad Mehra and Company that a form has been prescribed by the High Court for certificates to be issued under Section 41 of the Code of Civil Procedure, namely, form No. (j) 32 at page 186 of the Court’s General Rules and Circular Orders, Civil, Volume II and their Lordships referred to an earlier decision of this Court in Savitri Devi y. Kamal Singh A.I.R. 1955 Pat 456 where it was held that the act of sending a certificate Under Section 41 of the Code of Civil Procedure was something in the nature of a judicial act, and unless there was a formal order of the transferee court to that effect, and unless the transferee court had applied its mind judicially to the matter, a certificate purported to be sent by it under Section 41 of the Code of Civil Procedure to the transferor court would be invalid and without jurisdiction. In the case of Prahlad Prasad Mahrotra there was no. order of the transferee court directing that a certificate should be issued under Section 41 and it did not appear from the ordersheet that any such certificate was prepared and sent by the transferee court to the Calcutta High Court. Their Lordships held that in those circumstances the provisions of Section 41 were not complied with. Similar is the situation in the present case and the entries in the execution register relied upon cannot take the place of a certificate. I am thus of the view that the transferee court at Gaya had still the jurisdiction to execute the decree and there is no merit in the objection raised by learned Counsel for the petitioner.

29. Learned Counsel for the petitioner finally urged that the executing court had no jurisdiction to revive the Execution Case No. 19 of 1954 which was dismissed earlier as being not maintainable. In other words, that execution case having come to an end, it was no longer pending and as such, it could not be revived. In support of this contention he referred once again to the inter partes decisions of this Court and the Supreme Court (1) and (2) which had laid down that the order of dismissal of the execution case as being not maintainable passed by the executing court oh 23rd of December, 1954 was right and valid. The executing court held in the present impugned order that according to the judgment of the Supreme Court the decree-holders were entitled to get the Execution Case No. 19 of 1954 revived because there was “an order of personal decree also against Shrimati Gauri Kumari Devi”. The-contention is that this conclusion was entirely wrong and erroneous in law. Learned Counsel for the decree-holders opposite party on the other hand, refuted these contentions and submitted that the executing court had the jurisdiction to revive the said execution case. He referred to Atindra Lal Pakrasi V. Monoranjan Choudhury but the execution case there was only struck off and not dismissed as not being maintainable. On the facts of that case it was held that there was no question of the decree-holder’s abandoning the execution proceedings and the order striking off the execution case was passed merely for the purpose of showing disposal of pending cases. The conclusion of; their Lordships was that there was no termination of the previous execution case. The facts of that case are entirely different and it is of no? assistance to the decree-holders. In Pentapati Chine Venkanna v. Pentapati Bangararaju the order of the executing court disclosed that the previous execution petition was only closed and it was taken to be a closure for statistical purposes. It was held that passing of such an order cannot tantamount to an order of dismissal as the intention of the court in making an order ‘closed’, for statistical purpose was manifest and it did not intend to finally dispose of the application, but to keep it pending. Their Lordships pointed out that it was not the
phraseology used by the executing court that really mattered but it was really the substance of the order that was material and whatever terminology might be used, it was for the court to ascertain, having regard to the circumstance under which the said order was made, whether the court; intended to finally terminate the execution proceedings. In that case their Lordships had no hesitation in agreeing with the High Court that the execution petition was still pending on the file of the executing court and the subsequent application was only an application to continue the same. The position thus is that really the substance of the order in each case has to be taken into account.

30. In order to decide as to whether the order passed by the court below reviving execution case 19 of 1954 was right, some of the earlier orders have to be taken into account. The Execution Case No. 19 of 1954 was dismissed by the executing court on 2342-1954 as being not maintainable, but on 20-1-1955 the executing court restored the said execution case to its file. The High Court took the view on 20-3-1957 that the previous order dated 23-12-1954 dismissing the execution case was right and the subsequent order restoring it was erroneous (see1). The Supreme Court affirmed the order of the High Court on 5-3-1952 (see2) and observed that the decree-holders could execute the personal decree, but not before recovering their dues out of the amount of compensation payable to them in respect of the mortgaged property. The net result was that Execution Case No. 19 of 1954 in respect of the personal decree was not maintainable at that stage; in other words, that execution case terminated and came to an end. It cannot be said that it remained pending for all these years. This matter can be tested in another way. Supposing the decree-holders were able to realise their entire dues in respect of the mortgage bond out of the amount of compensation payable in respect of the mortgaged property, the question of executing the personal decree would not have arisen at all and in that event, it could not be held that the execution case was pending throughout, but only the proceedings were held up and suspended temporarily for some reason or the other. The position thus is that the filing of an execution case for enforcing the personal decree depended on a certain eventuality and it was open to the decree-holders either to execute the personal decree or forego their right in respect of it and remain satisfied only with the amount of compensation. On taking all these factors into consideration I am of the opinion, that the Execution Case No. 19 of 1954 could not be revived and the court below acted illegally in the exercise of its jurisdiction in reviving the said execution case.

31. Learned Counsel for the decree-holder opposite parties submitted that even if the said execution case could not be revived, the application filed by them in the court below should be treated as fresh application for execution of the personal decree. Learned Counsel for the petitioner, on the other hand, Urged that the said application filed by the decree-holders was not an application as provided by Order 21, Rule 11(2) of the Civil Procedure Code, and, as such, it could not be treated as a fresh application for execution. It is true that the application filed by the decree holders on 13th February, 1965 bore the heading “Section 151 C. P. C.” and the prayer was to restore the execution Case ‘No. 19 of 1954, but it contains most of the particulars which had to be given in a written application under sub Rule 2 of Order 21, Rule 11. Sub Rule 2 provides that-

Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely:

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;

(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any crossdecree, whether passed before or after the date of the decree sought to be executed,

(h) the amount of the costs (if any) awarded;

(i) the name of the person against whom execution of the decree is sought; and

(j) the mode in which the assistance of the Court is required, whether….

The said application gives the number of the suit, the names of the parties, the date of the decree and also the numbers of the previous execution cases and their results. The names of the persons against whom the execution of the personal decree has been sought have been given in the said application. It further indicates that the Claims Officer had ascertained the dues at Rs. 58,100/-with interest at the rate of 4 per cent per annum. There is a further statement in the said application that the Compensation Officer had finally ascertained the amount of compensation for the mortgaged property at Rs. 22,419.68 P. but this amount fell short of the total dues and a claim has been made in the said petition that the decree-holders were entitled to realise the balance amount by execution. The said application gave all the necessary details but it was not in a tabular form ‘ and it was not verified. This sub-rule has been amended by the Patna High Court and according to the amendment, Clauses (b) to (d), (f) and (h) of the sub-rule have been omitted. But in spite of this amendment, some of the information’s required by those clauses have been given in the said application. Order 21, Rule 17 lays down the procedure on receiving an application
for the execution of a decree and Sub-rule (1) of Order 21, Rule 17 has been amended by this Court and it reads thus:

On receiving an application for the execution; of a decree as provided ;:by Rule 11, sub rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with and if they have not been complied with, the Court shall allow the defect to be remedied then and there or with-in a time to be fixed by it and, if the decree-holder fails to remedy the defect within such time, the Court may reject the application.

The position thus is that if some of the requirements of Order 21, Rule 11(2) are not complied with it is mandatory for the executing court to give an opportunity to the decree – holders to remove the defects before rejecting the said application. The object of the amendment if I may say so is quite wholesome, so that the interest of the decree-holder may not suffer on account of the omission to observe some of the formalities and furnish some of the particulars in connection with the decree and the exception. It is for the Court to give a proper relief to an aggrieved person who comes to Court to seek its assistance provided all the necessary and relevant facts have been enumerated by him and they should not be penalised if he chose to give a wrong label or heading in his application. In other words, a litigant should not be deprived of his remedy and he should not be non-suited even if he chose to mention a provision of law which was not applicable for the redress of his grievances. In such a case, it is the bounden duty of a court to apply the law correctly on the facts and circumstances of a particular case and grant a suitable relief. In the circumstances of the present case, I am of the opinion, that it is not necessary for the decree-holders to file another application for execution and it would be just and proper to give them an opportunity to remedy such of the defects, as the court below finds in compliance with the requirements of Rule 11 of Order 21 of the Civil Procedure Code. The court below ought to have adopted this procedure instead of reviving the said execution case.

32. Learned Counsel for the decree-holders submitted that the execution of the personal decree was not barred by time and he referred to Section 48 of the Civil Procedure Code and the decision in Maharaja of Darbhanga v. Homeshwar Singh P.L.J. 132 P. C. He contended that the question of execution arose only after the determination of the amount of compensation payable in respect of the mortgaged property and until that determination, the decree-holders could not execute the personal decree. In other words, when a portion of the dues could not be recovered, it became open to the decree-holders to execute the personal decree. In the decision relied upon by him their Lordships were of the opinion that, in order to make the provision of the Indian Limitation Act applicable, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. Mr. Shree Nath Singh (who also appeared for the petitioner) did not press the question of limitation at this stage and he reserved his objection and argument in that respect on the ground that that question was premature at this stage and it would arise only after the decision of this Court as to whether the same execution could be revived or the application filed by the other side (decree-holders) could be treated as a fresh application for execution. In these circumstances. I refrain from expressing arty opinion on this point.

33. In the result, the application in revision is dismissed subject to this modification in the order of the learned Subordinate Judge that Execution Case No. 19 of 1954 could not be revived, but he is directed to treat the application, filed on 13-2-1965 by the decree-holders as a fresh application for execution and give them an opportunity to remove the defects and then he will deal with it in accordance with law. In the circumstances of this case, the parties will bear their own costs.

B.P. Sinha, J.

34. I agree.