Mt. Pancham Koer Vs. Ranbir Prasad - Court Judgment

Malik, C.J.

1. This appeal has been filed by the legal representative of the landlord applicant. One Chaudhari Sheo Baran Singh applied under Section 4, Encumbered Estates Act before the Collector of Agra. The Collector sent the papers to the learned Special Judge in due course. After the papers had reached the Court of the learned Special Judge, Ch. Sheo Baran Singh applied for amendment of a decree, No. 81 of 1932 of the Court of the Civil Judge of Agra which had been passed against him on the basis of a mortgage deed. This application was filed before the Civil Judge and was for amendment of the decree under Section 80, Agriculturists' Relief Act by reducing the rate of interest and calculating it in accordance with the provisions of the said Act.

2. An objection was taken before the learned Civil Judge that inasmuch as Ch. Sheo Baran Singh had already applied under the Encumbered Estates Act the proceedings under Section 30, Agriculturists' Relief Act were not maintainable by reason of the provisions of Section 7, Encumbered Estates Act. The learned Civil Judge decided against Ch. Sheo Baran Singh and dismissed the application for amendment of the decree on 6th February 1937.

3. Against that order a civil Revn. No. 166 of 1937 was filed in this Court. The revision came up for hearing before a Bench of this Court, and one of the points considered was whether the provisions of Section 7(b), Encumbered Estates Act applied to an application filed by the landlord applicant for amendment of a decree under the Agriculturists' Relief Act. The Bench of this Court held that:

Proceedings, attachments, processes and suits mentioned in Clauses (a) and (b) of Section 7, Encumbered Estates Act are proceedings, attachments, processes and suits against the landlord in respect of debts and the landlord himself is not necessarily under any disability for taking proceedings which he may be entitled to take under the law for the protection of his interest.

They went on to hold that there was no force in the contention of the decree-holder that the application under Section 30, Agriculturists' Relief Act was incompetent and was liable to be dismissed. They, therefore, allowed the revision, set aside the order of the Court below and directed that Court to reinstate the application of Sheo Baran Singh dated 12th December 1936, and to dispose of it according to law. An attempt to have this order reviewed was made by the decree-holder, Ranbir Prasad, and the matter was again considered by the same Bench. The review application was, however, dismissed on 28th April 1939, on the ground that the application for review was not competent. The Court, however, while dismissing the application for review, gave the additional reasons in support of the view taken in the year 1938. These two decisions are Sheo Baran Singh v. Ranbir Prasad : AIR1938All477 and Ranbir Prasad v. Sheo Baran Singh : AIR1939All619 .

4. After the decision of this Court the learned Civil Judge entertained the application under Section 80 and amended the decree No. 31 of 1932 passed by that Court. After the amendment the landlord applicant filed the amended decree before the learned special Judge and wanted that a decree under Section 14, Encumbered Estates Act, should be passed on the basis of the amended decree. The decree-holder Ranbir Prasad, however, urged that the decree as amended should be ignored and that the learned special Judge should pass a decree under Section 14, Encumbered Estates Act on the basis of the-decree as it stood before its amendment. The learned special Judge decided in favour of Ranbir Prasad and passed a decree under Section 14 for the amount that was due under the decree No. 81 of 1982 before its amendment. It is against that decision that this appeal has been filed.

5. The landlord applicant is now dead and his widow, Pancham Koer, is the appellant. In this appeal Ranbir Prasad has been impleaded as the sole respondent.

6. A preliminary objection has been raised on behalf of the respondent by Mr. Gopi Nath Kunzru that as the other creditors are not parties to this appeal, the appeal is defective for misjoinder of necessary parties and should be dismissed. Great reliance has been placed by him on the decision of a Full Bench of this Court in Benares Bank v. Bhagwan Das 34 A.I.R. 1947 All. 18. He has urged that the basis of that decision is that if a person was a necessary party to the proceedings before the lower Court he is a necessary party to the appeal and that in his absence an effective decree cannot be passed. Learned Counsel has pointed out that though it is true that in this appeal any variation of the judgment of the Court below would be beneficial to the other creditors and their rights are not likely to suffer, yet if the respondent had filed a cross-objection, on the principles laid down in the Full Bench decision, ' it would have been impossible to do full justice between the parties. It has further been urged that if costs are awarded to the respondent the claim of the respondent will be increased by that amount and the interest of the other creditors may suffer.

7. Mr. Pathak on behalf of the appellant, has distinguished the decision of the Full Bench in Benares Bank v. Bhagwan Das 34 A.I.R. 1947 All. 18 on the ground that the facts of that case were such that the other creditors were vitally interested in the result of the appeal. In the Full Bench case a claim had been made under Section 11, Encumbered Estates Act that the property specified in the claim was not liable to attachment, sale or mortgage in satisfaction of the debts of the landlord applicant. The point having been decided against the claimant he had filed the appeal, and Mr. Pathak has urged that if his appeal had been allowed and it had been held that the property was not liable to attachment, sale or mortgage in satisfaction of the debts of the landlord applicant, the interest of the other creditors would have materially suffered. In the case before us, however, the appeal having been filed by the land-lord applicant, if the appeal is allowed, the other creditors would gain and their interest is not likely to be affected. He has relied on the decisions of the Oudh Chief Court in Har Narain Prasad v. Ashiq Hussain ('42) 29 A.I.R. 1942 Oudh 313, Durga Prasad v. Shamser Bahadur ('42) 29 A.I.R. 1942 Oudh 317 and Bhagwati Prasad v. Deputy Commissioner Bara Banki ('45) 32 A.I.R. 1945 Oudh 177. We agree with his contention that it is not likely that the interest of the other creditors would materially suffer by our decision in this appeal and we cannot, therefore, dismiss the appeal on the ground that no effective decree can be passed in the absence of the other creditors.

8. We are bound by the decision of the Pull Bench and it is, therefore, not necessary for us to express any opinion. But, in our view, the decision in that ease must be confined to the facts of that case and it should not be extended to a case of this nature where there is no likelihood of the interest of the other creditor suffering. The view that all the objectors and creditors are necessary parties to every proceeding before the special Judge would logically lead to this startling result that if a creditor is allowed to make an application under Section 9, Sub-section (8) with a belated claim or if a claimant is allowed to make a claim at a late stage under the proviso to Sub-section (2) of Section 11, all the proceedings would have to be re-opened and decided afresh in their presence. As we read the scheme of the Act, the intention was that it being the estate of the landlord applicant which was being administered, he was one party and each claimant or creditor was the other party. Of course, it was open to any claimant or creditor to join in any contest and thereby become directly interested in that particular proceeding and a party thereto. If the other creditors or claimants did not choose to appear before the special Judge to contest the claim or the debt, we do not see why it should be held that they are necessary parties and without them the appeal cannot go on. The difficulty of taking that view is that it is not till the decrees are transmitted to the Collector under Section 19 for execution, and even now till then, that here is a complete list of claimants to his property or a complete list of the creditors of the landlord applicant. Be that as it may, the Full Bench decision being distinguishable, we are of the opinion that this preliminary objection has no force.

9. Mr. Pathak on behalf of the appellant has urged that though the view taken by Collister and Bajpai JJ. in Sheo Baran Singh v. Ranbir Prasad : AIR1938All477 , and Ranbir Prasad v. Sheo Baran Singh : AIR1939All619 may no longer be good law, in view of the decision of the Pull Bench in Girjesh Bahadur v. Bhagwati Prasad 29 A.I.R. 1942 All. 153, the decision of Collister and Bajpai JJ. being a decision inter partes in this very case, the Pull Bench decision cannot be taken into consideration and it must be held that the landlord applicant had a right to apply for amendment of the decree under Section 80, Agriculturists' Relief Act even after he had applied under the Encumbered Estates Act and that Section 7, Encumbered Estates Act did not bar such an application. This contention of learned Counsel is so obvious that it is not necessary to discuss it further. The decision of Collister and Bajpai JJ. being a decision inter partes the fact that in some other case the Pull Bench had taken a different view of the law would not take away the binding effect of the decision in this case.

10. Mr. Gopi Nath Kunzru for the respondent has, however, urged that even though the view of Collister and Bajpai JJ. may be accepted as good law for the purposes of this case the lower Court was justified in ignoring the amendment made in the decree under Section 80, Agriculturists' Relief Act. His contention is that all that this Court was called upon to decide in the years 1938 and 1939 was whether Section 7, Encumbered Estates Act would bar the proceedings under the Agriculturists' Relief Act. The point did not arise nor was it considered whether after the decree was amended the landlord applicant should be entitled to get a decree passed under Section 14, Encumbered Estates Act on the basis of the amended decree. He has urged that he does not rely on Section 7 but relies on Sections 15 and 14(4)(c), Encumbered Estates Act for his submission that the amendment cannot be considered by the learned special Judge in passing his decree under Section 14. Section 15 of the Act provides:

In determining the amount duo on the basis of a loan which has been the subject of a decree the special Judge shall accept the findings of the Court which passed the decree except in so far as they are inconsistent with the provisions of Section 14.

Section 14(4)(c) provides that the provisions of the U.P. Agriculturists' Belief Act, 1934, shall not be applicable to proceedings under this Act. It is on the strength of these two provisions that Mr. Kunzru has urged that the special Judge is entitled to take into consideration the decree as originally passed and the benefit of the provisions of the U.P. Agriculturists' Relief Act should not be given to the landlord applicant in proceedings under this Act. Mr. Pathak, on the other hand, has urged that the basis of the decision of this Court in 1938 and 1939 was that the Civil Judge had jurisdiction to amend the decree and Section 7(b) of that Act did not take away his jurisdiction and if the decree was amended by a competent Court that was the only decree which existed and which the special Judge could take into consideration in determining the amount due to the creditor and to pass a decree under Section 14.

11. In our view, there is considerable force in the submissions made by Mr. Pathak, but this point is also concluded by decisions of this Court. In Brij Bhukan Saran v. Budh Sen : AIR1943All318 a decree had been allowed to be amended under Section 30, Agriculturists' Belief Act after the landlord applicant had applied under the Encumbered Estates Act. No appeal or revision was filed against the amended decree and the order amending the decree was allowed to become final. When the learned special Judge came to pass the decree under Section 14 it was urged before him that he could take into consideration the decree as passed before the amendment and that he must 'ignore a decree under the Agriculturists' Relief Act' which had been passed after the institution of the proceedings under the Encumbered Estates Act. This contention found favour with the Bench. They followed a previous unreported decision of this Court in preference to a reported decision in Ayub Ali Shah v. Kalicharan 28 : AIR1941All400 . After this Bench decision, the provisions of Section 14(4)(c) came to be considered by a Full Bench in Rukmuddin v. Lachmi Narain : AIR1945All113 where this sub-section was interpreted to mean that the special Judge was not bound to accept the finding of a Court in a suit under Section 33, Agriculturists' Relief Act, when ascertaining the amount due under Section 14. Their Lordships quoted with approval a passage from a decision of the Oudh Chief Court in Ram Sagar Prasad v. Mt. Shyama 26 A.I.R. 1939 Oudh 75 which was to this effect:

He (the special Judge) has to see whether the civil Court that passed the decree could have passed the decree which it did pass if that Court had to comply with the provisions of Section 14, or to put it in other words, the special Judge has to say to himself : 'If I under Section 14 had then to give a decree, would the decree that I could have given under Section 14 correspond with the decree which the civil Court has in fact given'.

This decision was followed by a Bench of this Court in Bindraban v. Shafiq Ahmed : AIR1948All99 . In view of these decisions, by which we are bound, we must hold that the special Judge was not entitled, when passing a decree under Section 14, to take into consideration the amendment made to that decree under Section 30, Agriculturists' Relief Act. We may, however, point out that under Section 4(3), Encumbered Estates Act a landlord applicant has been given the right to have a decree amended under the provisions of the U.P. Agriculturists' Relief Act, 1934, within three months after the date on which Chapter (3), Encumbered Estates Act, came into force and the period from the date of his application to the date of the final disposal thereof is to be excluded from the period within which to make an application under Sub-sections (1) and (2) of this section. In the view that has been taken by the Pull Bench, even though a landlord applicant had got his decree amended under the Agriculturists' Relief Act, he could not be given the benefit of that amendment. Be that as it may, the Full Bench decision is binding on us and this point must be decided against the appellant.

12. The result, therefore, is that this appeal must fail and it is dismissed with costs.