Patna High Court
Syed Shah Safiul Alam vs Syed Shah Mohammad Aminul Alam And Anr. on 8 September, 1967
Equivalent citations: AIR1969PAT162, AIR 1969 PATNA 162
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, J.
1. This case illustrates the dictum of the Privy Council that the difficulties of a decree-holder in India really start after he has obtained a decree.
2. This is a Miscellaneous Second Appeal by the judgment-debtor arising out of a proceeding under Section 47 of the Code of Civil Procedure hereinafter to be referred to as the Code. The respondent obtained a decree against the appellant in money suit No. 33 of 1943 on the llth October 1947. The appellant was the Mutawalli of waqf under which the respondents were entitled to maintenance from the properties of the waqf as some of the beneficiaries. The respondents prayed in the suit that a decree be passed for Rs. 8203/10/- against the appellant, who was the defendant in the suit, with costs and future loss and damage and if necessary a receiver may be appointed for the realisation of the amounts to which the respondents may be found entitled from the property entered in schedule 1 of the plaint. As many as 30 items of Zamindary properties were mentioned in Schedule 1. The decree which was passed by the trial Court was in the following terms:--
"It is ordered that defendant do pay to the plaintiffs (Rs. 4,354-0-6 to the plaintiff no. 1 and Rs. 1849-13-6 to the plaintiff no. 2 plus Rs. 1237-15-4 as damages) the sum of Rs. 7,441-10-4 with interest thereon at the rate of 6 per cent per annum from the date of judgment to the date of realization of the said sum and do also pay Rs. 990-14-0 the proper cost of this suit with interest at the rate of six per cent per annum from this date to the date of realisation."
The defendants filed first appeal no. 57 of 1947 in this court which was dismissed some time in the year 1958. Thereafter the decree-holders proceeded to realise their decretal dues by an execution case in which they made a prayer for arrest of the judgment-debtor. The judgment-debtor objected to the said mode of execution. The Courts below rejected his objection and he came up in miscellaneous Appeal No. 368 of 1961 in this court. This appeal was allowed by Choudhary J. on the 27th July, 1962. On an interpretation of the decree with reference to the plaint and judgment in the suit it was held that the judgment-debtor was not personally liable for the payment of the decretal dues, as under the decree the decree holder had a right to realise the same only from the income of the properties mentioned in schedule 1 of the plaint. In other words it \vas held that there was no personal liability of the Mutawalli to pay any money to the beneficiaries except out of the income of the waqf property.
3. Thereafter respondent no. 1 filed execution case no. 12 of 1963 in execution court under Order 21, Rule 15 of the Code for the benefit of respondent no. 2 also. Since all the Zamindari Properties, which had been mentioned in Schedule 1 of the plaint were vested in the State of Bihar on or before the 1st January, 1956 under the Bihar Land Reforms Act, 1950, in the present execution a prayer was made for the attachment of the amount of ad interim compensation payable to the Appellant under the said Act. The appellant filed Miscellaneous case no. 45 of 1963 under Section 47 of the Code. Only two points of objection were taken into the execution court -- (i) that the compensation money in question was not a debt and so it was not attachable in execution of the money decree and (ii) that the decree which had been passed in favour of the respondents was not a joint decree within the meaning of Order 21, Rule 15 of the Code and hence respondent no. 1 had no right to execute the decree for realisation of the decretal dues payable to respondent no. 2.
Both these points were decided against the appellant by the learned Additional Subordinate Judge in whose court the execution case was pending. The first point was decided on the authority of a Bench decision of this court to which I was a party in Miscellaneous Appeal No. 56 of 1959 which after the execution is reported in 1964 BLJR 234, Ramsaran Das Kashyap v. Kabiraj Basudavanand. The second point was repelled on the ground that the decree in favour of the respondents was a joint decree. The judgment-debtor went up in appeal, in regard -to the first point a different stand was taken. There it was contended that the decree was for arrears of maintenance which was to be realised out of the income of certain properties mentioned in schedule 1 of the plaint and since those properties had been lost to the judgment debtor as the same had vested in the State, it could not be realised from compensation money payable to him as that money was not the income of the property. Therefore it could not be attached.
The learned Additional District Judge has held that the decree was realisable from property itself and when that property has ceased to exist it could be realised from the compensation that is payable on account of the same, no matter whether the compensation is treated as profit arising out of that property or not. The lower Appellate Court has agreed with the execution court with regard to second question. The judgment debtor has preferred this miscellaneous appeal.
4. In this court Mr. Balbhadra Pra-sad Singh learned counsel for the appellant, pressed the first point again in a somewhat different form. He submitted that in view of the decision of Choudhary J., in Miscellaneous Appeal No. 368 of 1961 (Pat), the decree for maintenance was a charge on the Zamindari properties within the meaning of Section 100 of the Transfer of Property Act hereinafter called the Act. Hence the remedy which could be available to a mortgagee under Sec. 73 of the Act to claim compensation amount could not be available to a person who had a charge on the property within the meaning of Section 100 of the Act. I may make it clear here that it was neither argued in either of the courts below nor before me that the execution case cannot proceed in view of the provisions of law contained in Section 4(d) of the Bihar Land Reforms Act, As a matter of fact neither Mr. Justice Choudhary decided that decree in question created any charge over the properties nor the decree expressly said so. It was not the stand of the appellant in the courts below that the decree had created a charge on the Zamindari properties which could not be executed after their vesting.
I may only point out in this connection that a charge created by a decree other than a compromise decree, is not a charge created by the act of parties or by operation of law within the meaning of Section 100 of the Act vide Debendra Nath Giri v. Smt. Trinayani Dasi, AIR 1945 Pat 278 and Mt. Prem Kuer v. Ram Lagan Rai, AIR 1948 Pat 199. It has been pointed out in those cases that the main distinction between the rights of a holder of a charge under Section 100 of the Act and a simple mortgagee, that the former cannot proceed against a subsequent bona fide purchaser for value without notice of the charge while the latter can proceed against him, does not apply to a case of a charge created by a decree other than a compromise decree. A compromise decree as has been held in the case of Sheo Narain Sahu v, Lakhan Sahu, AIR 1945 Pat 434, creates a charge by an act of parties and such a charge cannot be enforced against a subsequent transferee for value without notice. On principle, therefore, I do not see any reason as to why a person, who has got a charge o: maintenance decree against certain properties, cannot have the same right as that of a simple mortgagee to enforce the charge against the substituted security, as the compensation money payable in respect to the zamindari properties. I may also add that it has been pointed out in the case of Rani Padma Sundari Sahiba v. Rani Prabhawati Devi, 1958 BLJR 796 that where the plaintiff does not ask for a decree to enforce the charge but has brought the suit merely for a money decree for the arrears of allowance, section 4(d) of the Bihar Land Reforms Act is not a bar to the suit. But, in my opinion this question does not arise in this case.
5. In the present case, the decree-holder proceeded to execute the decree as a money decree. He wanted to realize the amount by attachment of the ad interim compensation payable to the judgment-debtor. On the authority of the Bench decision of this Court in the case reported in 1964 BLJR 234 this objection was squarely repelled by the execution court. There was no further scope to agitate this point in that form and that is the reason why the judgment-debtor pressed the point in the court of appeal below as also in this Court in quite a different form. The answer to the point in that form is very simple. Firstly, the decision of Choudhary, J. that the decree that was passed against the defendants gave a right to the decree-holder to realise the same only from the income of the proparties mentioned in Schedule 1 of the plaint, was an obiter dictum. The point as to whether the decree could be realised only from the income of the properties or the properties themselves did not fall for decision in the proceeding out of which Miscellaneous Appeal No. 368 of 1961 (Pat) had arisen. The only point canvassed before and decided by his Lordship, Mr. Justice Choudhary, was as to whether the judgment-debtor was personally liable.
In the present execution case also the point has not been raised in that form nor is it necessary to decide it. The ad interim compensation, which is payable to the judgment-debtor under Section 33 of the Bihar Land Reforms Act, is not really the amount of compensation in lieu of the vested property itself but it is paid by way of interest on the amount of compensation, the payment of which has been deferred. This point has been discussed in R.S. Das's case, 1964 BLJR 234 referred to above. That being so, the ad interim compensation payable to the judgment-debtor is income from the property which stand in a different form now, in that, in place of the zamindari properties, the amount of compensation payable to the Mutwalli judgment-debtor is the property in his hands and he is deriving income from that property in the shape of ad interim compensation. In any view of the matter the amount of ad interim compensation payable to the judgment-debtor can be attached and paid to the decree-holder in satisfaction of the decree in question. I find no difficulty in taking this view in this case.
It is unnecessary to go to the question of charge, the principle of substituted security or the question as to whether the decree could be realised from the corpus of the property which in the same form is no longer available. The argument on behalf of the appellant was that the charge created by the decree in this case was on the income of the property. If it was so, Shah J. has decided in the case of Fatehchand Tarachand v. Parashram Maghanmal, AIR 1953 Bom 101, applying the principles of many English decisions, that even in this country a charge on future property operates upon such property as soon as it comes into existence. In R.S. Das's case, 1964 BLJR 234 it has been held that the amount of ad interim compensation, as soon as it becomes payable to the ex intermediary, becomes a debt and can be attached and realised in satisfaction of even a money decree. If the charge is on the income, the decree-holder, holding such a charge cannot be in a worse position. Even without attachment he can enforce his charge against the income irrespective of the fact that the character and nature of the Waqf property had changed. Whatever may be the form and character of the property, it is impressed with the trust and does exist, for the benefit of the beneficiaries, in the hands of the Mutwalli, who is under an obligation to distribute the income in accordance with the trust.
6. The second point has no substance in view of a Bench decision of this Court in the case of Chandra Chur Deo v. Mt. Shyam Kumari, AIR 1932 Pat 261 where Fazl All J. (as he then was) has pointed out at p. 265 that the term "joint decree" is wide enough to apply to a case where the rights of several parties have been determined by one and the same decree. The facts and views of the court below in this regard were quoted with approval on that page which indicate that almost under identical circumstances the decree was held to be a joint decree for the purpose of Order 21, Rule 15 of the Code. I may also point out in this case that although the amounts of maintenance was specified separately as payable to plaintiffs 1 and 2, there was no such specification made in regard to the amount of damages and costs decreed in favour of the two plaintiffs. Even in regard to the amounts of maintenance and damages, the total amount of Rs. 7000/- and odd was mentioned. In my opinion, the decree in question was clearly a joint decree which could be executed by one decree-holder for the benefit of the other also.
7. In the result, I find that there is no merit in this appeal and it is accordingly dismissed with costs.