M.L. Chaturvedi, J.
1. This is a judgment-debtors appeal against an order dismissing his objections filed under Section 47 of the Code of Civil Procedure.
2. It appears necessary to give a short history of the case which begins as far back as the year 1914. Rana Sheoraj Bakhsh Singh was the proprietor and taluqdar of what was called Khajurgaoa estate in the district of Rae Bareli. He relinquished his rights in favour of Uma Nath Bakhsh Singh or 9-5-1913, and Uma Nath Bakhsh Singh became the proprietor and taluqdar of the estate. On 13-7-1914, Rana Uma Nath Bakhsh Singh executed a deed of simple mortgage in favour of the Allahabad Bank Ltd., decree-holder respondent.
The mortgage was for a sum of Rs. 6,00,000/-and the mortgage money carried interest at the rate of seven per cent per annum compoundable six monthly. Rana Uma Nath Bakhsh Singh mortgaged 167 villages under this deed. On 23-5-1924, the respondent Bank filed a suit for recovery of the balance of the unpaid mortgage money by sale of the mortgaged property. On 31-1-1925, a preliminary decree for sale for the recovery of Rs. 4,86,863-15-8 was passed. This decree was made final on 16-7-1926, and it directed the sale of the mortgaged property, namely the proprietary rights of Rana Uma Nath Bakhsh Singh in the 67 villages which had been mortgaged,
3. The first application for execution was filed by the respondent on 23-9-1926, but the parties entered into a compromise on 15-3-1928 whereby the decree was made payable in certain instalments and the rate of future interest was enhanced. The instalments were not paid and on 20-4-1931, the respondent filed a second application for execution. On 4-2-1932, execution proceedings were transferred to the revenue Court and on 19-4-1932, a second compromise was arrived at between the parties.
Fresh instalments were allowed to the judgment-debtor after slightly enhancing the future rate of interest though the past rate was somewhat reduced. Instalments were again not paid and the third application for execution was made on 14-9-1933. The execution proceedings were again transferred to the Collector on 8-1-1934. The U. P. Agriculturists' Relief Act of 1934 came into force soon after and the judgment-debtor applied for amendment of the decree under that Act. On 19-10-1936, an order was passed under the above Act permitting payment of the decretal amount in six monthly instalments of Rs. 20,000/- each and the rate of interest was also reduced. Information of the amendment of the decree was sent to the revenue Court on 22-12-1936, and the revenue Court returned the papers back to the civil Court on 12-1-1937.
On 16-1-1937, the civil Court ordered that the papers be consigned to the record room. On another application filed by the judgment-debtor an order was passed on 29-4-1938, granting three years' time to the judgment-debtor for the payment of the decretal amount. The amount as usual was not paid and the fourth application for execution was filed on 25-5-1940. The judgment-debtor filed objections to the execution and one of the objections was that the last application for execution was made more than 12 years after the date of the decree and was consequently barred by time.
The executing Court dismissed the objections and an appeal was filed before the Chief Court or Avadh by the judgment-debtor which was dismissed on 13-4-1944. Vide Umanath Bakhsh Singh v. Sheo Prasad Gupta, 1944 Oudh WN 247; (AIR 1944 Oudh (257) The Chief Court held that the execution application was not barred by time, as the limitation would commence to run from the date of the amendment of the decree and it was quite immaterial for the purposes of limitation as to what happened prior to the amendment. An application for leave to appeal against the judgment of the Avadh Chief Court was filed but it was also dismissed. Vide Umanath Bakhsh Singh v. The Allahabad Bank Ltd., 1945 Oudh WN 51: (AIR 1945 Oudh 285).
The decision of the Avadh Chief Court that the application for execution filed on 25-5-1940, was within limitation thus became final and binding on the parties. The learned counsel for the appellant has conceded that this is the position and has not contended that the application for execution dated 25-5-1940, was barred by time.
4. Proceedings continued for a number of years till on 1-7-1952, the U. P. Zamindari Abolition and Land Reforms Act (Act I of 1951) came into force. As a consequence of this enactment the Zamindari sights of the judgment-debtor were abolished and it was no longer possible to sell the zamindari rights in the 67 villages which had been ordered to be sold. In the meantime Rana Uma Nath Bakhsh Singh died and was succeeded by his son Rana Sheo Amber Singh, the appellant before us. In view of the altered situation created by the Zamindari Abolition and Land Reforms Act, an application was made by the decree-holder on 20-9-1952 to the Sales Officer to whom the decree had already been sent for execution.
In this application it was alleged by the decree-holder that the rights of the judgment-debtor which were sought to be sold in execution included his transferable rights in trees, wells and buildings situate in the various villages under sale. Valuations of rights in trees, wells and buildings had been made at tehsils. The details of those rights which still existed in the judgment-debtor were given. They were rights in buildings belonging to the judgment-debtor and in trees and private wells situate in abadi and in the groves.
It was further averred that the judgment-debtor's rights in the proprietary groves as well as in sir and khudkasht had been continued and were in partial substitution of the proprietary rights acquired by the State. Compensation money payable to the judgment-debtor was also claimed as substituted security. It was prayed that steps be taken to ascertain the extent and valuation of the judgment-debtor's present transferable interest in the villages sought to be sold and to put such interest to sale.
It was further prayed that order be passed directing the Compensation Officers within whose jurisdiction the villages sought to be sold were situate to place at the disposal of the Court the compensation money payable to the judgment-debtor in respect of the villages previously sought to be sold. The judgment-debtor filed objections to this application on several grounds and the decree-holder respondent filed a replication on 3-11-1952. The sales Officer (revenue Court) sent the case for disposal to the civil Court.
The execution Court heard the objections and dismissed them by the order under appeal dated 15-4-1953. It held that the houses, trees and wells situate in the abadi could be sold in execution of the decree and the decree-holder was further entitled to compensation bonds granted by the Government to the appellant in lieu of his zamindari rights, as substituted security. It also held that the bhumidhari rights acquired by the appellant under Section 18 of the Zamindari Abolition and Land Reforms Act could also be sold in execution of the decree. Hence the present appeal.
5. The appeal came up for hearing before a Division Bench on 22-11-1957, and the Division Bench, in view of the importance of the questions raised in the appeal, directed the record of the case to be placed before the Hon'ble the Chief Justice for the constitution of a larger Bench. It referred the whole case to a larger Bench. The Chief Justice accordingly constituted the present Bench.
6. The learned counsel for the appellant has not challenged the correctness of the decision of the executing Court that the houses, trees and wells situate in the mortgaged villages could be sold in execution of the decree. He has also not challenged the decision of the executing Court that the Zamindari Abolition Compensation Bonds should be handed over to the decree-holder respondent in execution of the decree, as they have been substituted in place of the zamindari rights. He has not argued ground No. 4 of the grounds of appeal that the decree-holder could not sell in execution proceedings the rights acquired by the judgment-debtor under the Zamindari Abolition and Land Reforms Act.
7. The learned counsel has urged only two points before us, namely :
1. That only the proprietary rights of the judgment-debtor were mortgaged in the deed of 13-7-1914, and all those proprietary rights have now vested in the State of Uttar Pradesh. The Bhumidhari rights that have been granted by the Zamindari Abolition and Land Reforms Act in the said villages are creation of a Statute and are quite independent of the proprietary rights of the judgment-debtor which were the subject-matter of the mortgage. Hence the bhumidhari rights acquired by the appellant in the 67 mortgaged villages could not be sold in execution of the decree.
2. That the application dated 20-9-1952, was a fresh application for execution of the decree, and as it was filed more than 12 years after the date even of the amended decree, the application of 20-9-1952, was barred by time.
8. We now proceed to consider the points urged by the learned counsel for the judgment-debtor appellant. The first three grounds of the grounds of appeal relate to the first point mentioned above. The learned counsel for the appellant has stressed the fact that the appellant and his predecessors were taluqdars whose names were mentioned in Lists I and II of the lists prepared under the Oudh Estates Act of 1869. The mortgaged rights were purely proprietary rights in the 67 villages and these rights were all abolished by the Zamindari Abolition and Land Reforms Act.
A notification under Section 4 of that Act was issued as a result of which the proprietary rights in all the villages vested in the State of Uttar Pradesh free from all encumbrances. The consequences of the order under Section 4 are mentioned in Section 6 of the Act which provides that when a notification under Section 4 has been published in the Gazette, the consequence of the publication would inter alia be the abolition of all rights, title and interest of all the intermediaries, namely the zamindars and taluqdars. This consequence is to follow notwithstanding anything contained in any contract or document or any other law for the time being in force.
It is argued that the entire mortgaged property has vested in the State of Uttar Pradesh, and the bhumidhari rights have been granted by Section 18 of the Act to the intermediaries who were in possession of or held sir, khudkasht or a zamindari grove. His contention is that this right is entirely a new tenure created by the Statute and is quite independent of the proprietary rights of the appellant in the 67 mortgaged villages before the Zamindari Abolition and Land Reforms Act came into force. He contends that though Section 152 of the Act says that the interest of a bhumidhar shall be transferable this right of transfer has been made subject to certain conditions mentioned in the Act itself.
One of the conditions is contained in Section 154 and it prohibits a bhumidhar from transferring by sale or gift any land to any person, other than an institution established for a charitable purpose, where such person shall, as a result of the sale or gift, become entitled to land which together, with the land held by him will, in the aggregate exceed 30 acres in Uttar Pradesh. The second limitation is contained in Section 155, which prohibits a bhumidhar from executing a possessory mortgage in favour of anybody, There are certain limitations on the rights of letting also contained in Section 156.
The bhumidhar has no right of free exchange but this right has also to be exercised subject to the proviso contained in Section 161. Lastly, it is contended that even the line of succession has been changed and the successors in the bhumidhari rights will be those as mentioned in Section 171 instead of those mentioned in the Oudh Estate Act. His contention is that the sir and khudkasht rights have completely disappeared and a new tenure has been created by the Zamindari Abolition and Land Reforms Act only the wells, trees in abadi and buildings situated within the limits of an estate continue to belong to the intermediary. He was consequently giving up his objection with respect to private wells, trees in abadi and buildings situate in the mortgaged villages.
9. The contention of the decree-holder respondent is that the previous sir and khudkasht rights of the zamindar as well as his rights in the groves have been allowed to continue to vest in the zamindar and only a new nomenclature has been given to those rights. Instead of being called sir land, khudkasht land and the grove land of the erstwhile proprietor they are now called his bhumidhari rights in the same lands. They thus formed part of the mortgaged property.
In the alternative, it is urged that the bhumidhari rights have been granted in substitution of the old proprietary rights and they are thus saleable by virtue of the doctrine of substituted security. It was lastly contended that, in any case, these rights have been carved out of the zamindari rights and have only replaced those rights and thus remains subject to the mortgage decree.
10. We think the contention of the learned counsel for the decree-holder with respect to the first two submissions of his is correct. Section 4 of the Zamindari Abolition and Land Reforms Act says that all estates situate in Uttar Pradesh shall vest in the State of Uttar Pradesh from the date of the notification and all such estates shall stand transferred to and vest in the State free from all encumbrances 'except as hereinafter provided.'
11. Section 6 of the Act also uses a similar expression. It narrates the consequences of the vesting of an estate but it also says that the consequences mentioned in the section shall ensue 'save as otherwise provided in this Act.'
12. One of these saving provisions is contained in Section 9 of the Act where private wells, trees in abadi and buildings have been directed to continue to belong to or be held by the intermediary and the site of the wells or the buildings with the area appurtenant thereto would be deemed to be settled with him by the State Government.
13. Section 18 of the Act contains a similar exception in respect of the sir and khudkasht lands and the zamindari groves of which the zamindar was in possession on the date of vesting or which were held by him on that date or should be deemed to have been held by him. Section 18 has been made subject only to the provisions of Section 10, 15, 16 and 17 under which hereditary rights have been granted to tenants under certain circumstances. In such sir and khudkasht land the zamindar or intermediary does not get bhumidhari rights but he gets bhumidhari rights in all his sir and khudkasht lands and his groves of which he was in actual possession of or should be deemed to have been held by him. He is entitled to 'take or retain possession' or such lands, as Bhumidhar. The sir and khudkasht and the groves were obviously annexed to the proprietary rights held by the erstwhile zamindars and no such rights could be contemplated in land as divorced from the proprietary rights. The bhumidhari rights are thus referable to the proprietary rights of the proprietor as sir holder, khudkasht holder or the holder of the proprietor's grove.
14. No doubt there have been variations in these rights as mentioned in Section 152, 154, 155, 156, and 171 but such variations could always be made by the U. P. Legislature. The restriction-contained in Section 154 was based on the altered policy of the Legislature in avoiding the concentration of wealth in a few persons. The restriction in Section 155 appears to have been made in the interest of bhumidhars to avoid litigation which is more or less inevitable in the case of a possessory mortgage. Where a possessory mortgage has been executed, Section 164 provides that it shall be deemed at all times and for all purposes to be a sale to the transferee.
The restriction in Section 156 also appears to have been made so that the bhumidhar shall have only so much of land as he himself is able to cultivate except where he is a disabled person. The exchange in Section 161 has been made subject to the permission of the Assistant Collector previously obtained. The succession to small bhumidhari rights, for obvious reasons has to be different from the succession to the large taluqdari rights. The above restrictions do not in any way militate against the fact that the erstwhile zamindars have been permitted to retain their sir and khudkasht lands and proprietor's groves. The bhumidhari rights thus are part of the property which had been mortgaged under the mortgage deed dated 13-7-1914.
15. This conclusion is further strengthened by the fact that no compensation has been granted to the zamindars for the acquisition of the rights in sir and khudkasht lands and the proprietor's groves. Chapter III of the Act deals with the subject of assessment of compensation and contains Section 27 to 64. Section 39 enumerates the items which should be included in the gross assets of the intermediary. Clause (b) of Sub-section (1) of the section is relevant and it says that in the gross assets is to be included the amount, computed at the rates applicable to ex-proprietary tenants of similar land, for land in the personal cultivation of or held as intermediary's grove, khudkasht or sir, in which hereditary rights do not accrue.
Hereditary rights here refer to the hereditary rights of tenants. In the case of sir in possessions of tenants it is provided that the amount included in the gross assets will be the rent at hereditary rates in which hereditary rights accrue or the rent payable by the tenant of the land. It will thus be seen that the amount included in the gross assets of the intermediary will be the rent payable by the tenant. If the zamindar loses such land because some tenant has been in possession of it, he is entitled to have the rent payable to him included in the gross assets, If he himself is in possession, the amount is computed at the rates of rent paid by ex-proprietary tenants.
This provision, however, of the inclusion of rent at ex-proprietary rates in the gross assets is only nominal and for the sake of form because Section 44 which provides for the determination of the net assets says, in Clause (d), that where the intermediary holds any land in his personal cultivation or as khudkasht or intermediary's grove or sir, other than that in which hereditary rights accrue, the amount computed at ex-proprietary rates for such portions only o the land as is in his personal cultivation or held as khudkasht, grove land or sir shall be deducted from the gross' assets. He thus gets no compensation for the land which was in his possession as his sir or khudkasht or his grove. This omission to grant any compensation with respect to such land shows that the Legis-dature has permitted the intermediary to retain the lands mentioned above.
16. There is not much case law on the point and our attention has been drawn only to two Allahabad cases and to the observations of the Supreme Court in the case in which the validity of the Zamin-dari Abolition and Land Reforms Act was challenged before that Court.
17. In the case of Mst. Govindi v. The State of Uttar Pradesh : AIR1952All88 , a Bench of this Court had before it a writ petition challenging the validity of the U. P. Zamindari Abolition and Land Reforms Act, The learned counsel appearing for the petitioner raised some pew points before the Division. Bench. The Division Bench considered them on their merits! and rejected all the points. One of the points urged was that the State Legislature had no power to acquire the rights and interests of the intermediaries in part. It' was contended that under the Act sir and khudkasht lands of the intermediaries had been allowed to be retained by them and this showed that the entire rights of the intermediaries had not been acquired.
It was contended that under Article 31 of tht Constitution the Legislature could acquire the entire rights of a person in any property but had no authority to acquire only some of the rights. The Bench overruled this contention by observing that under the Act all the proprietary rights of the intermedaries had been acquired and though sir and khudkasht lands had been allowed to be retained by the intermedia-ries, they were allowed to do so as bhumidhars and that the bhumidhari tenure was a new tenure created by the Statute and bhumidhars were not proprietors. Great stress has been laid before us on the fact that! the learned judges observed that the entire rights of the intermediaries had been acquired and that bhumi-dhari tenure was a new tenure created by the Statute.
Even in this case it was said that the sir and khudkasht lands had been allowed to be 'retained' by the intermediaries. The main observations, how-ever, are inconsistent with the observations made by the Supreme Court in the case of Surya Pal Singh v. Govt. of the State of Uttar Pradesh : [1952]1SCR1020 , The argument which was advanced before the Division Bench of this Court was actually advanced before the Supreme Court also and it was urged that it was not open to the U. P. Legislature to acquire part of the proprietary rights in land and leave the Dhumidhari rights with the landlord.
Mr. Justice Mahajan, as he then was, repelled the argument by saying that 'it is open to Government to acquire the whole of the right of an owner or a part of that right. Leasehold and other similar rights can always be acquired and if a person owns the totality of rights, it is not necessary to acquire the whole interest of that person if it is not needed for public purposes.' The above observation cannot be said to be a clear authority for the proposition that bhumidhari rights are part of the zamindari rights but they impliedly support the proposition.
18. In the case of Mst. Janatunnisan v. Mustafa Husain Khan, 1956 All WR '(HC) 788, the question for decision was whether the bhumidhari rights, to which the judgment-debtor had succeeded as an heir, were the assets of the late zamindar who held the sir and khudkasht lands in which such rights had accrued. The Division Bench answered the question in the affirmative. It held 'the sir and khudkasht was undoubtedly the property of Jamaluddin Khan which was inherited by the appellants as the heirs of the deceased. By reason of a change in the law the sir and khudkasht rights were converted into bhumidhari rights.
The mere fact that the law has made a changer in the nature of the rights which the appellants had acquired as heirs of the deceased, does not mean that the property which has come into the hands of the appellants as heirs of the deceased, has ceased to be the assets of the deceased. It still remains the assets of the deceased although the characteristics of the property have, to some extent, been altered by law.' This is a clear authority in favour of the proposition that the bhumidhari rights of the proprietors are only an altered form of the previous sir and khudkasht rights. It may be noted here that one of the learned Judges, viz. Agarwala J., was a member of both the Benches which decided the two Allahabad cases mentioned above.
19. As already stated, sir and khudkasht rights could not exist independently of the proprietary rights of the erstwhile zamindars and it is those very rights which have been continued with some modifications and are now called bhumidhari rights.
20. The learned counsel for the appellant then argued that if the proprietary rights of his client in the mortgaged villages had been sold before the Zamindari Abolition and Land Reforms Act came into force, the judgment-debtor would have been granted the rights of an exproprietary tenant in the sir and khudkasht lands and also in the proprietary groves. The argument is that the sir and khudkasht rights contain within them the rights of the proprietor as also the rights of a tenant and it is only the rights of the proprietor which has been mortgaged by Rana Umanath Bakhsh Singh. But this argument cannot be accepted for the reason that when the rights of the proprietor and the tenant both exist in the same person, the right of tenancy merges in the proprietary right.
In such a case there are no two separate rights held by the proprietor but only the right as proprietor which includes within it the right of a tenant. The right of tenancy remains in abeyance as long as there is no division of the two rights. If the right of the present judgment-debtor in the sir arid khudkasht land had been sold before the Zamindari Abolition and Land Reforms Act had come into force, there would have been a separation of the rights and it is possible that the ex-proprietary rights of the appellant as a tenant may not have been saleable in execution of the decree, as they were not transferable rights. The proprietary rights would not have been saleable for the reason that they were not transferable and not for the reason that they did not form part of the mortgaged property.
This position has been made clear in the case of Shamsher Bahadur Singh v. Lal Batuk Bahadur Singh 0065/1953 : AIR1953All147 . In this Division Bench case reliance was placed on the earlier case of Sham Das v. Batul Bibi, ILR 24 All 538. The facts of Sham Das's case were that a zamindar had mortgaged by way of a usufructuary mortgage his zamindari together with his sir lands. He then lost his zamindari rights and became an ex-proprietary tenant of the sir. It was held that the usufructuary mortgage did not become ineffectual but took effect as a mortgage of the ex-proprietary rights, The decision was based on the principle that if a mortgagor's title is altered, theland held under the new title is still subject to the mortgage.
When Sham Das's case was decided, the rights of a usufructuary mortgage were transferable under Section 9 of the North Western Provinces Rent Act (Act XII of 1881). The right to transfer by such tenants was considerably restricted by Sub-section (2) of Section 20 of the North Western Provinces Tenancy Act of 1901. According to this sub-section, the right was not transferable in execution of a decree of a civil or a revenue Court and the voluntary transfer could only be effected in favour of a co-sharer. It is after the ex-proprietary tenant's right had become non-transferable that it was possible to hold that it could not be sold in execution of the mortgage decree. This would be so, as already stated, not because it was not part of the mortgaged property but because it was non-transferable right.
21. The learned counsel for the appellant cited the case of Akbar Husain v. Husain Jahan Begum, 1935 Oudh WN 437: (AIR 1935 Oudh 309). Therein it was laid down that where sir land is gifted to a person subject to the charge of his paying the profits thereof to another as maintenance allowance and the land is subsequently sold, giving rise to ex-proprietary rights in favour of the donee, his liability to pay the maintenance allowance ceases. The charge for maintenance allowance was held not to continue after the sir land had been sold and an ex-proprietary right had arisen out of the sale, but this was because of the fact that the ex-proprietary rights in this case were not transferable and therefore could not be the subject-matter of the charge.
In cases where the ex-proprietary rights themselves are transferable, these rights would continue to be subject to the mortgage, as they are part of the mortgaged rights. The bhumidhari rights are transferable for all practical purposes and they having accrued because of the sir and khudkasht rights of the mortgagor in the mortgaged property, the bhumidhari rights, we think, continue to be subject to the mortgage as being part of the mortgaged property.
22. Assuming for the sake of argument that they are not parts of the mortgaged property but have been obtained in lieu of the sir and khudkasht rights in that property, they would still be subject to the mortgage, as having been substituted for the mortgaged sir and khudkasht rights. The bhumidhari rights having been granted in sir and khudkasht lands and the intermediary's groves without payment of any additional sum they will partake of the nature of the mortgaged rights under the doctrine of substituted security, which has a very wide application. The authorities on this) point are numerous but mention need be made only of some cases.
23. In the leading case of Byjnath Lall v. Ra-moodeen Chowdry, 1 Ind App 106 (PC), it was held by the Privy Council that the mortgagee would take the subject-matter of the pledge in the new form which it had assumed. The doctrine of substituted security was applied. Section 73 of the Transfer of Property Act, we think is only an illustration of that doctrine. It is by no means exhaustive.
24. In the case of Rai Baijnath Goenka v. Maharaja Sir Ravaneshwar Prasacl Singh, 49 Ind App 139: (AIR 1922 PC 54), their Lordships of the Privy Council held that where a decree gives a right to possession of a share in a joint mahal which has been partitioned, the Court in proceedings for execution of a decree had power, under Section 47 of the Code of Civil Procedure, to put the decree-holder in possession of the specific land substituted for the judgment-debtor's) share on partition. The case was not that of a mortgage.
It was a case where a decree for possession of joint property had been passed. This joint property was subsequently partitioned and the Privy Council held that in execution proceedings notice could be taken of the partition and the decree-holder put in possession of the property which was allotted to the judgment-debtor as a result of the partition, though it was not property for the possession of which the decree had been passed. The next case is the case of a mortgage.
25. The Privy Council held in the case of Mohammad Afzal Khan v. Abdul Rahman, 59 Ind App-405: (AIR 1932 PC 235), that if the subject-matter of mortgage is undivided share and the co-sharers effect a partition, the mortgagee must pursue his remedy against the share allotted in severally to the mortgagor.
26. The case of Venkatrama Iyer v. Esumsa Rowther, ILR 33 Mad 429 was a case where a decree for money had been mortgaged and subsequently the decretal amount was realised by the mortgagor himself. It was held that the mortgagee had a charge on the amount so realised. The principle applied was that the mortgagee was entitled to a charge on the property which through no fault of his had taken the place of the mortgaged property.
27. Similarly in the Full Bench case of Girdhar Lal v. Alay Hasan Musanna : AIR1938All221 , it was held that where a portion of the mortgaged land was acquired by Government under the Land Acquisition Act and compensation was awarded to the mortgagor, the principle of substituted security applied to the compensation money and the mortgagee was entitled to recover the same from the mortgagor. As far as compensation is concerned, it would be specifically covered by Sub-section (2) of Section 73 of the Transfer of Property Act but the principle of substituted security extends even further and applies to every property which has been obtained in lieu of the mortgaged property.
In the course of the judgment the learned Judges referred to a number of cases in which it was held, even before the amendment of Section 73, that where the property covered by the mortgage is compulsorily acquired the lien which attached to the property is transferred to the compensation money which becomes a security in a new form. They then observed :
'All these decisions give effect to the well re-cognised doctrine of substituted security by virtue of which the rights and interests of the mortgagee in the mortgaged property attached to the property which may replace the mortgaged property.'
To the same effect is the decision of a Full Bench of Madhya Bharat High Court in the case of Nab-bobai v. Hasan Gani Abdul Gani, AIR 1954 Madh-B 181.
28. We consequently hold that the bhumidhari rights in tile sir & Khudkasht lands & the proprietors groves are subject to sale in execution of the mortgage decree also as substituted security, assuming for the sake of argument that these rights did not form part of the mortgaged property.
29. The learned counsel for the respondent further urged that assuming that the bhumidhari rights cannot be treated as part of the mortgaged property or as substituted security, they are liable to be sold as they had been carved out of the mortgaged pro-perty and amalgamated with it. The argument is that the judgment-debtor was entitled to compensation for his sir and khudkasht lands but the Legislature did not provide for the payment of this compensation and permitted him to continue to occupy his previous sir and khudkasht lands and his groves.
It is said that the bhumidhari rights would in such a case be accession to the substituted security of the compensation money and would thus partakeof the nature of mortgaged property. In support of this contention reference was made to the case of Punnayya v. Venkatappa Rao : AIR1926Mad343 . In this case, a learned Judge of the Madras High Court held that where the vendee of a mortgaged house demolished it and rebuilt another house using the material of the mortgaged house, the new house became subject to the mortgage. We do not propose to consider this third submission of the learned counsel, as we are in his favour on the first two submissions.
30. We now come to the second point urged by the learned counsel for the appellant. The contention of the learned counsel is that the application dated 20-9-1952, is fresh application for execution of the mortgage decree and as such it is barred by the 12 years rule of limitation contained in Section 48 of the Code of Civil Procedure. He concedes that it has been finally held between the parties that the fourth execution application filed on 25-5-1940, was not barred by time. The contention of the learned counsel for the respondent is that the present execution proceedings are continuing under the execution application filed on 25-5-1940, and the application dated 20-9-1952, was not a fresh application for execution but was only an application ancillary to' the application of 1940. Here again we think that the contention of the learned counsel for the respondent is correct.
31. We have already given above the purport of the application dated 20-9-1952. It is not in the form of execution applications as provided in Order 21, Rule 11 of the Civil Procedure Code and it has not been addressed to the executing Court. On the other hand, it was filed before the revenue Court which was pro-ceeding to execute the decree under the execution application filed in 1940. The application clearly appears to have been made because of the coming into force of the Zamindari Abolition and Land Reforms Act, as stated in paragraph 3 of the application.
The result of this Act was that the proprietary rights of the appellant in the mortgaged villages could not be sold, as the major portion or those rights had ceased to exist except in some of the properties. The decree-holder in his application pointed out that buildings, trees and private wells continued to belong to the appellant and these could be sold in execution of the decree, as also his groves and bhumidhari rights which were transferable. The Bank also claimed that the compensation money awarded to the appellant as a result of the abolition of the Zamindari rights has become subject to the mortgage and therefore was payable to the decree-holder.
The Bank did not seek in this application to execute the decree against any new property but only against the property which had still remained with the judgment-debtor and was part of the mortgaged property or became subject to the mortgage by the rule of substituted security. The application was necessitated by the change in the circumstances brought about by the coining into force of the Zamindari Abolition and Land Reforms Act. The execution of the decree had to be limited to the properties; which still remained with the judgment-debtor or were to be received by him in lieu of the mortgaged property.
The entire villages could no longer be sold as prayed for in the execution application of 1940 and execution could be directed only against part of the property. Hence the decree-holder had to specify that part. We think that the application made by him on 20-9-1952, was not a fresh application for execution but an application to continue execution proceedings already pending under the execution application of 1940, with modifications which had been necessitated by the coming into force of the Zamindari Abolition and Land Reforms Act.
32. If the application of 20-9-1952, was not a fresh application for execution and we think it was not a fresh application the learned counsel for the appellant concedes that no question will arise of the execution being barred by time. He, however, cited the case of Bandhu Singh v. K. T. Bank, Ltd. : AIR1931All134 , as an authority for the proposition that the application of 20-9-1952 was a fresh application for execution. We do not think that the above case supports the contention of the learned counsel.
In this case, after the expiry of 12 years, the decree-holder filed an application for the attachment and sale of shares in two new villages which had. never been mentioned in any of the previous applications for execution and the learned Judges held that the decree-holder was now seeking to attach fresh, property and his application for attachment of this new property was a fresh application, within the meaning of Section 48 of the Code of Civil Procedure and was thus barred by time. In the case before us the decree-holder is not seeking to execute the decree against any new property but is only seeking to execute the decree against part of the property for the sale of which he had already applied within the time allowed by law.
33. The next case of Newazish Ali Khan v. Bhanu Pratap Singh : AIR1953All74 , is also clearly distinguishable. The facts of this case briefly are that a simple money decree had! been passed on 14-8-1933. Both the judgment-debtor and the decree-holder died thereafter and on 10-8-1945, an application was made for substitution cf names and for transmission of the decree to another Court. The manner in which the decree was to be executed was not given in the application, nor did that application contain any list of properties which were to be sold in execution of the decree.
On 30-8-1947, an application for execution of the decree was filed, for the first time attaching a list of properties against which execution was sought. It was held that the application dated 30-8-1947 must be held as a fresh application and not a mere continuation of the previous application dated 10-8-1945. It would thus appear that the application for execution was made more than 12 years after the date of the decree and the previous application made within 12 years was only an application for substitution of names and transmission of the decree to another Court.
34. We have already given our reasons for holding that the application dated 20-9-1952, was. not an application for execution at all but was an application ancillary to the execution application filed on 25-5-1940. It is well established that no rule of limitation is applicable to such ancillary applications. They are to be treated as applications in an already pending execution case.
35. In the case of Shaikh Kamar-ud-din Ahmad v. Jawahar Lal, 32 Ind App 102 (PC), their Lordships of the Privy Council laid down that an application which in substance as well as in form was an application to revive and carry through a pending execution of decree which had been suspended by no act or default of the decree-holder, was not an application to initiate a fresh execution and was not barred by Article 179 of the Indian Limitation Act. They further held that the execution proceedings commenced under the previous execution application had not been finally disposed of when the application under consideration was made.
36. Their Lordships have further clarified the position in the case of the Oudh Commercial Bank, Ltd. v. Bind Basni Kuer . They have held that the question whether an application for execution of a decree is a fresh application within Section 48 of the Code of Civil Procedure must be decided on the facts and circumstances of each case and on the substance of the matter. The mere fact that the executing Court by inadvertence terminated the execution case will not make a further application for execution a fresh application. Even if a higher rate of interest is subsequently claimed under an agreement it will not make the application a fresh application for execution.
37. In Chunder Coomar Roy v. Bhogobutty Prosonno Roy, ILR 3 Cal 235, a Full Bench of the Calcutta High Court held that the words 'applying to enforce the decree' in Act IX of 1871 mean the application by which proceedings in execution are commenced and not applications of an incidental Kind made during the pendency of such proceedings. We think the application of 20-9-1952, was an application of an incidental kind made during the pendency of execution proceedings.
38. Similarly a Full Bench of this Court in the case of Rahim Ali Khan v. Phul Chand, ILR 18 All 482, held that the applications by the decree-bolder to the executing Court to go on from the point where the execution proceedings had been arrested and to complete execution of the decree would be applications merely ancillary to the substantive application for execution.
39. To the same effect is another decision of a Full Bench of this Court reported in the case of Ram Sarup v. Dasrath Tiwari, ILR 33 All 517.
40. A Division Bench of this Court in the case of Girdhari Lal v. Ram Charnn Lal AIR 1926 All 831 followed, as it was bound to do, the above Full Bench decisions.
41. A Bench of the Madras High Court in Divakaran Nambudiripad v. Koodulur Manakkal Brahmadathan Nambudiripad AIR 1945 Mad 241 held that an amendment of execution application can be allowed even after the lapse of 12 years from the date of the decree.
42. We think that on the principle laid down in the above cases it must be held that the application dated 20-9-1952, was not a fresh application but an incidental or ancillary application made in connection with the pending execution case started with the execution application dated 25-5-1940. It thus cannot be held to be barred by the provisions of Section 48 of the Code of Civil Procedure. This point also must be decided against the appellant.
43. These were the only two points which were urged before us and we have decided both of them against the appellant.
44. The appeal, therefore, must fail. It is accordingly dismissed with costs. The stay order is discharged.