{"id":253387,"date":"1964-04-24T00:00:00","date_gmt":"1964-04-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kedarnath-goenka-and-ors-vs-khaja-md-hassan-imam-on-24-april-1964"},"modified":"2018-04-15T02:04:27","modified_gmt":"2018-04-14T20:34:27","slug":"kedarnath-goenka-and-ors-vs-khaja-md-hassan-imam-on-24-april-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kedarnath-goenka-and-ors-vs-khaja-md-hassan-imam-on-24-april-1964","title":{"rendered":"Kedarnath Goenka And Ors. vs Khaja Md. Hassan Imam on 24 April, 1964"},"content":{"rendered":"
Patna High Court<\/div>\n
Kedarnath Goenka And Ors. vs Khaja Md. Hassan Imam on 24 April, 1964<\/div>\n
Equivalent citations: AIR 1964 Pat 491<\/div>\n
Author: U Sinha<\/div>\n
Bench: U Sinha, R Bahadur<\/div>\n

JUDGMENT<\/p>\n

U.N. Sinha, J.\n<\/p>\n

1. This appeal has been, filed under the provision of Section 47 of the Code of Civil Procedure by the appellants, described as decree-holders against the respondent, described as the judgment-debtor. It is directed against an order passed by the learned Subordinate Judge on the 29th of April, 1981, allowing Miscellaneous Case No. 68 of 1959, filed by the respondent, in Execution Case No. 57 of 1956.\n<\/p>\n

2. The facts, shortly stated, are these : The respondent had executed a simple mortgage bond on the 28th of August, 1330, in respect of the proprietary interest in several touzis. Appellant No. 1 had obtained a mortgaga decree based on this mortgage, to Title Mortgage Suit No. 33\/23 of 1943\/1945. An Execution. Was levied by the decree-holder in which an objection was taken by the respondent, as a result of which the miscellaneous case in question was registered. It appears that the judgment-debtor had filed First Appeal No. 301 of 1948 against the decree passed in the mortgage suit, but the appeal was found to be infructuous, in view of Section 4(d) of the Bihar Land Reforms Act. By judgment of this Court dated the 7th of January, 1958, the appeal was disposed of. The mortgagee had, in the meantime, made his claim under Section 14 of the Land Reforms Act and a Claims Officer allowed the creditor’s claim to the extent of Rs. 93,000\/- as principal and Rs. 63,128-11-3 pies as interest besides future interest at 3 per cent per annum. This order had been passed on the 27th of July, 1956. In the original execution case, the decree-holder had prayed for the sale of the mortgaged properties, but after the- claim was allowed under the Bihar Land Reforms Act, the execution petition was amended and it was prayed that only the cost of the suit, amounting to Rs. 3,542-8-9 pies may be realished by sale of some other properties of the judgment-debtor.\n<\/p>\n

In the miscellaneous case in question, the only point which was urged at the time of hearing was that the decree-holder had no further right to realise the amount of cost decreed in the mortgage suit by putting other properties of the judgment-debtor to sale. The stand taken, by the decree-holder was to the effect that the decree-holder had claimed only the principal mortgage money and interest under the Bihar Land Reforms Act, and the decree for costs awarded in the mortgage suit remained intact and couid be executed by the decree-holder by putting other properties of the judgment-debtor to sales. This point has been decided by the learned Subordinate Judge in favour of the respondent judgment-debtor and the miscellaneous case has been allowed.\n<\/p>\n

3. Learned counsel for the appellants has drawn our attention to Section 4(d) and Section 14 of the Bihar Land Reforms Act and has urged that the decree-holder creditor
\nhad claimed, under Section 14 of the Act, only the amount of debt legally and justly payable by the debtor and there is no bar under Section 4(d) by which the decree-holder can fie prevented from proceeding with the execution of the decree for costs against the properties of the judgment-debtor, which had not been given in mortgage. According to learned counsel, when the mortgaged properties had been put out of reach of the creditor under the provisions of the Bihar Land Reforms Act, the decree for costs should be permitted to be executed as a personal decree, by sale of the judgment-debtor’s properties which are available for satisfaction of this decree.\n<\/p>\n

4. Section 4 (d) of the Bihar Land Reforms Act, 1950, reads as follows :-\n<\/p>\n

“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.”\n<\/p>\n

According to the learned counsel for the appellants, the execution case should be permitted to proceed, inasmuch as it is being levied for money the payment of which is not secured by a mortgage, or payment of which is not a charge on such estate of the judgment-debtor which had vested in the State of Bihar. Although the decree passed In the mortgage suit has not been placed before us, it is assumed for the disposal of this appeal, that the decree for costs had been passed according to Order XXXIV Rule 2 read with Rules 4 and 10 of the Code of Civil Procedure. But, learned counsel for the appellants contends that the decree for costs was not made a charge on the mortgaged estate, within the meaning of Section 4 (d) of the Land Reforms Act. According to learned counsel, further, the expression “charge” under Section 4 (d) should be construed according to the definition of the expression given in Section 100 of the Transfer of Property Act It is argued that even if the decree for costs had created a charge on the mortgaged estate, it was not a charge by operation of law within the meaning of Section 100<\/a> of the Transfer of Property Act.\n<\/p>\n

For the first proposition, reliance is placed upon the case of Maharajdhiraj Sir Kameshwar Singh v. Govind Lal, 1963 BLJR 779, and for the second proposition, on the case of Mt. Prem Kuer v. Ram Lagan Rai<\/a>, AIR 1948 Pat 199. These arguments are rebutted by learned counsel for the respondent on the ground that the costs decreed in the mortgage suit formed part of the mortgage decree and the costs were recoverable only from the mortgaged property, unless a personal decree had been passed against the judgment-debtor under Order XXXIV Rule 6 of the Code of Civil Procedure, if the execution case had proceeded upto that stage. Having heard learned counsel for the parties, on the contentions mentioned above, I am of the opinion that the Judgment and order of the learned Subordinate judge should be affirmed in this case and the execution case for costs struck off. If the decree for costs of the mortgage suit had been passed in terms of Order XXXIV Rules 2, 4 and 10 of the Code, then the costs decreed formed part of the mortgage decree and they were recoverable from the mortgaged properties alone, unless the matter had proceeded up to the stage contemplated by Order XXXIV Rule 6 of the Code. The facts are clear that the execution case levied by the decree-holder had not proceeded up to the stage of Order XXXIV Rule 6. Therefore, there is no such decree which can now be executed as against
\nthe properties of the judgment-debtor, which were not the subject-matter of the mortgage. It is difficult to accept the argument that because the mortgaged properties have been put out of reach of the decree-holder, and he cannot recover his costs of the suit from such properties, he should be permitted to recover his costs by sale of other properties of the judgment-debtor. In spita of the decree passed in the morteage suit, what the decree-holder had to do under Section 14 of the Bihar Land Reforms Act was to apply to the appropriate officer for the realisation of the debt legally and justly payable by the debtor.\n<\/p>\n

In this context, the decree passed, whether for the principal and interest, or for costs, has no relevancy. The Claims Officer had to determine the dues of the creditor on the principles laid down in the Bihar Land Reforms Act and not on the basis of the decree passed in the mortgage suit. The decree for mortgage itself cannot attract any further assistance of the Court, nor would the decree for costs, in the absence of a decree under Order XXXIV Rule 6 of the Code of Civil Procedure. In the case of Matukdhari Singh v. Ramdas Singh, reported in 2 Pat LJ 51 : (AIR 1916 Pat 1), it was held that in a mortgage decree for sale, costs are part of the amount due upon the mortgage and are recoverable from the mortgaged property and not personally from the debtor unless the decree itself so directs. Such a direction cannot be presumed where the decree is silent on the point. Learned counsel has distinguished this decision on the ground that this decision was given when the relevant provision of law was incorporated in Sections 86 and 88 of the T. P. Act, before the taw on the subject had been incorporated in Order XXXIV of the Code of Civil Procedure. In my opinion, there is no merit in this distinction, as is indicated by later decisions of this Court. It was reiterated in the case of Rai Satyadeva Narayan Sinha v. Tribeni Prasad, reported in AIR 1935 Pat 153 that in a suit on mortgage, costs are recoverable from the mortgaged property, under Order XXXIV of the Code of Civil Procedure.\n<\/p>\n

This question has also been considered by this Court, in the case of Atmakuru Rama Rao v. Atmakuru Rajeshwar Rao reported in AIR 1948 Patna 127. In considering Rules 2, 4 and 10 of Order XXXIV of the Code of Civil Procedure, this Court stated thus:\n<\/p>\n

“Hence, in ordinary circumstances, the Code has provided the mortgagee with this additional advantage that he can claim the benefits of a secured creditor not only in respect of the mortgage debt but also in respect of costs incurred by him in enforcing the mortgage. But in the present case it appears, as was said at the Bar on behalf of the decree-holders, that the mortgage property is not sufficient to discharge the mortgage debt proper. It was also stated that the personal remedy, in addition to the mortgage rights which may be enforceable under Rule 6 of Order 34 of the Code, is not available as the suit had been instituted beyond six years of the due date of payment. Hence, naturally the decree-holders are anxious to execute the decree for costs of the appellate Court not as a part of the mortgage decree but as a simple money decree. But this remedy, in my opinion, is not available to the decree-holders unless they get a direction from the Court by way of an exception to the general rule that costs in the suit, including costs at the appellate stage, will form part of the mortgage decree. In other words, unless the decree-holders get a specific direction from the Court that the decree for costs would
\nfee payable personally by all or some of the judgment-debtors, as the case may be, the ordinary rule must prevail and the costs realised only as a part of the mortgage decree.”\n<\/p>\n

IN my opinion, Rama Rao’s case, (A I R 1948 Pat 127), of this Court is very much in point and it is a decision against the contentions raised by learned counsel for the appellants. The principles relied upon by him upon the decisions in the case of Maharajdhiraj Sir Kameshwar Singh v. Govind Lal Nakphopha, (1963 B L J R 779) and in Mt. Prem Kuer v. Ram Lagan Rai<\/a>, (AIR 1948 Patna 199) cannot be brought in aid for continuing this execution case, as if a money decree or a personal decree is being executed against the judgment-debtor. In the result, it must be held that the appeal is without any merit. It is, therefore, dismissed, Out under the circumstances, without costs.\n<\/p>\n

Bahadur, J.\n<\/p>\n

5. I agree.<\/p>\n","protected":false},"excerpt":{"rendered":"

Patna High Court Kedarnath Goenka And Ors. vs Khaja Md. Hassan Imam on 24 April, 1964 Equivalent citations: AIR 1964 Pat 491 Author: U Sinha Bench: U Sinha, R Bahadur JUDGMENT U.N. Sinha, J. 1. This appeal has been, filed under the provision of Section 47 of the Code of Civil Procedure by the appellants, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-253387","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nKedarnath Goenka And Ors. vs Khaja Md. 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