Nageshwar Prasad v. Mata Prasad Singh — 1944 DIGILAW 176 (ALL)

JUDGMENT Bennett and Madeley, JJ. - These appeals are from a judgment of the Special Judge, First Class, Bara Banki, whereby he disposed of claims made by the Appellants, Nageshwar Prasad and Tribhuvan Datt, in three cases under the Encumbered Estates Act, 2. The facts have not been very clearly stated by the Special Judge and we had some difficulty at first in ascertaining from his judgment exactly what they were. 3. We understand that three applications u/s 4 of the Act were made by (1) Jwala Prasad and members of his family; (2) Bishwanath and his brother Gokaran; (3) Mata Prasad Singh. 4. The three sets of applicants were joint debtors in a certain debt. There was a fourth joint debtor named Lachhmi Narain who did not apply under the Act. The Appellant's claim was based on a mortgage deed for Rs. 1,500 and two deeds of further charge for Rs. 500 and Rs. 600. The mortgage deed was executed in 1916 and the deeds of further charge in 1917 and 1919 respectively. 5. The Appellants sued on these deeds in 1929 and obtained a decree and possession of the property the following year. They claimed that the amount due to them then had risen to Rs. 22,056/6/6. They obtained possession under the terms of the mortgage deed. 6. The three applicants came to an agreement with their creditors by which the latter agreed to reduce their claim for interest to the amount of the principal, applying the principle of damdupat. The Special Judge accordingly gave the Appellants a decree against each set of applicants for a fourth of the principal of the mortgage and deeds of further charge.(Rs. 2,600) and a similar sum by way of interest; the result being a decree against each for Rs. 1,300. To this he added a third of the costs in the previous suit mentioned. These costs amounted to Rs. 492/14, the liability of each set of applicants therefore being Rs. 164/4/8. 7. But the Special Judge had also to consider the claim against the non-applicant, Lachhmi Narain, who was admittedly a joint debtor to the extent of a fourth share. To this he added a third of the costs in the previous suit mentioned. These costs amounted to Rs. 492/14, the liability of each set of applicants therefore being Rs. 164/4/8. 7. But the Special Judge had also to consider the claim against the non-applicant, Lachhmi Narain, who was admittedly a joint debtor to the extent of a fourth share. It was contended by the Appellants that Lachhmi Narain was not entitled to the benefits of the Act, but this contention was repelled by the Special Judge, who observed that the amount for which a non-applicant is liable has to be determined in these proceedings, and the only procedure laid down in the Act for the determination of liability is Section 14 (which applies the damdupat principle). He accordingly gave the Appellants a decree for Rs. 1,300 against the non-applicants. The Appellants claim that they are entitled to more than this. 8. The answer to the Special Judge's argument is that Section 14 relates to claims made against the applicant; it provides for examination of such claims and the determination of the amount due from the applicant to the claimant. It does not provide for the examination of claims against a non-applicant. 9. It is, however, unnecessary to pursue this question further, as it is conceded by the learned Counsel for Lachhmi Narain that in view of a decision of this Court in 1940 he cannot support the view taken by the Special Judge. The case referred to is Bichcha Singh v. Hira Lal 1940 O.A. 847 : A.W.R. (C.C.) 422 : AIR Oudh 430. The decision was that of a single learned Judge of this Court. We have no doubt that it was right, and its soundness is not disputed. In determining the liability of a non-applicant the Special Judge should not therefore have extended to him the benefits of the Act. We may also refer in support of this view to the case of Bansidhar v. Moazzam Hasan 1944 O.A. (H.O."B") 83: 1944 S.L.R. 83. (1944 Oudh AHC 83). 10. We have heard some argument upon the point of procedure. The Special Judge gave the Appellants a decree against the non-applicant. We may also refer in support of this view to the case of Bansidhar v. Moazzam Hasan 1944 O.A. (H.O."B") 83: 1944 S.L.R. 83. (1944 Oudh AHC 83). 10. We have heard some argument upon the point of procedure. The Special Judge gave the Appellants a decree against the non-applicant. The use of the word "decreed" in Clause (b) of Sub-section (5) of Section 9 of the Act, as that clause originally stood, may have justified this procedure, but the word "determined' was substituted for it by an amending Act of 1930, which also added Clause (c) to show what procedure should be subsequently adopted. Counsel agree that all that the. Special Judge can now do is to determine the amount. The creditor can then under Clause (c) apply to the ordinary Civil Court having jurisdiction for a decree, paying the requisite court-fee. Counsel agree that this procedure should be followed on remand of the case by this Court to the Special Judge. 11. Learned Counsel were not, however, agreed as to whether the Special Judge should in determining the amount take into consideration other enactments which might possibly be invoked by the non-applicant or leave this to the Court to which application for a decree may afterwards be made. 12. We have come to the conclusion on a consideration of the terms of Clause (a) of Sub-section (5) of Section 9 that the Special Judge should not enter into the question whether the non-applicant is entitled to the benefit of some other enactment. He has merely to determine the amount of the joint debt due from him. If the non-applicant wishes to invoke some other enactment, on grounds which may or may not be personal to himself, in order to obtain a reduction of interest or some other benefit, that is a matter upon which the ordinary Civil Court to which application for a decree is made should adjudicate. 13. We accordingly allow these appeals with costs, set aside the decrees awarded to the Appellants against the non-applicant Lachhmi Narain and remand the case to the Special Judge for determination of the amount due from the non-applicant in the light of these observations and according to the provisions of law now in force.