Document Fragment View

Matching Fragments

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1007 of 1967.

Appeal from the judgment and order dated April 30, 1963 of the Allahabad High Court, Lucknow Bench in Review Application No. 2 of 1963.

C. B. Agarwala and Akhtar Husain, for the appellant. Danial A. Latifi, and M. I. Khowaja, for respondent No. 1. The Judgment of the Court was delivered by Ray, J.---This appeal is by certificate from the judgment of the Allahabad High Court dated 30 April, 1963. Leave was granted by the Allahabad High Court on 21 February, 1966. The facts are these. On 4 October, 1939 the appellant obtained a decree under the U. P. Encumbered Estates Act, 1934 against Sardar Mujibul Rahman Khan for the sum of Rs. 1,31,040-1-0 with costs and future interest at 3 1/2% p.a. on the basis of a secured debt. Sardar Mujibul Rahman Khan the judgment debtor died on 24 April, 1949. Thereafter the judgment debtor's sons who were brought on record on 21 April, 1953 applied for reduction of the decretal amount under section 4 of the U. P. Zamindars' Debt Reduction Act, 1952 (Act XV of 1953). The application was rejected by the Special Judge, Kheri on 18 February, 1957. The Special Judge held that unless and until the decree charged the mortgaged property no reduction of debt could be ordered under the U. P. Zamindars' Debt Reduction Act, 1952 and that the decree was not one such. The judgment debtor filed an appeal against the said order of the Special Judge. The appeal was heard on 27 November, 1962 by the Full Bench of the Allahabad High Court upholding the order of the Special Judge and dismissing the appeal which was treated as revision. Shortly after the dismissal of the revision petition the U. P. Zamindars' Debt Reduction Act, 1952 was amended by U. P. Zamindars' Debt Reduction (Amendment) Act, XX of 1962. The Amendment Act of 1962 received the assent of the President on 27 November" 1962 which happened to be the date of the order of the High Court on the revision application. The amendment was published in the Gazette on 4 December, 1962 and came, into force on that date. The judgment debtor thereafter on 20 February, 1963 filed an application for review against the order of the Full Bench dated 27th November, 1962.

The High Court in accordance with the order of the majority accepted the review application of the judgment debtor and set aside the order of the Special Judge rejecting the judgment debtor's application under section 4 of the Zamindars' Debt Reduction Act, 1952 and remanded the case to the Special Judge for disposal of the same in accordance with the provisions of the U. P. Zamindars' Debt Reduction Act, 1952 as amended by Act 20 of 1962.

Two questions arise in the present appeal. First, whether section 4 of the U. P. Zamindars' Debt Reduction Act, 1952 could 'be invoked by the judgment debtor, secondly, whether the High Court could accede to the application of the judgment debtor.

Section 4 of the U. P. Zamindars' Debt Reduction Act, 1952 (hereinafter referred to as the 1952 Act) in so far as it is necessary for the purpose of the present appeal is as follows:

"Powers to reduce debts after passing of decree: (1) Notwithstanding anything in the Code of Civil Procedure, 1908 or any other law, the, court, which passed a decree to which this Act applies relating to a secured debt, shall on the application either of the decree-holder or judgment-debtor, proceed as hereinafter stated.

The Amendment Act 20 of 1962 which deleted the words "charged under the decree" occurring in both sub-sections (2) and (3) of section 4 of the 1952 Act immediately after the words "mortgaged property" was made effective as from the date of enforcement of the U. P. Zamindars' Debt Reduction Act, 1952, namely, 25 May, 1953. The reason for this amendment given in the objects and reasons of the U. P. Zamindars' Debt Reduction (Amendment) Act, 1962 was because the High Court of Allahabad in the case, of Bannu Mal & Ors. v. Bashir Ahmad Khan & Ors. (1) held that the court was powerless to reduce debts after the passing of the decree unless the mortgaged property was charged under the decree. The effect of the Amendment was to give relief to mortgaged property within the contemplation of the Act.