Salik Ram v. Ram Sarup — 1945 DIGILAW 163 (ALL)

JUDGMENT Ghulam Hasan, Misra and Madeley, JJ. - The following questions have been referred to the Full Bench for decision : l.(a) Whether an appeal or revision lies where a decree is passed before the 1st January 1941, and is sought to be amended u/s 8 of the U. P. Debt Redemption Act (Act XIII of 1940). (b) Whether an appeal or revision lies in a case where the applicability of the provisions of the Debt Redemption Act comes in question in a suit filed after the Act came into force ? 2. Is an order refusing to amend a decree u/s 8 of the Debt Redemption Act a matter relating to the execution or discharge of the decree and falls within the purview of Section 47 of the Code of Civil Procedure. 3. What is the proper court-fee payable in the present case?" 2. A few preliminary facts leading up to the reference may be stated. On the 14th February, 1941, one Salik Ram filed an application u/s 12 of the U. P. Agriculturists' Relief Act read with Sections 8 and 9 of the U. P. Debt Redemption Act, claiming redemption without payment of any money, as upon the allegations made by him the mortgage money had been satisfied out of the usufruct of the property. In putting forward this claim he apparently claimed reduction of interest in accordance with the provisions of the Debt Redemption Act. The trial Court allowed redemption on payment of Rs. 1,424/4 and dissolved the claim to reduced interest under the Debt Redemption Act. His appeal to the lower appellate Court was unsuccessful An appeal purporting to be a miscellaneous appeal u/s 24 of the Debt Redemption Act was filed by the mortgagor in this Court and a Court-fee of Rs. 3 was paid. His learned Counsel conceded before the Hon'ble the Chief Judge before whom the appeal rare up for hearing that no miscellaneous appeal lay from the order of the lower appellate Court but he contended that an order refusing to amend a decree u/s 8 of the Debt Redemption Act is appealable u/s 47 of the CPC as the order relates to execution or discharge of the decree. In view of the doubt whether a miscellaneous appeal, a second appeal or a revision lay against the order of the lower appellate Court, the office raised the question of court-fee. In view of the doubt whether a miscellaneous appeal, a second appeal or a revision lay against the order of the lower appellate Court, the office raised the question of court-fee. The reference was made to the Full Bench to clarify the position, as there were a large number of cases pending in this Court in some of which appeals had been filed and in others revisions u/s 115 of the Code of Civil Procedure. 3. The facts stated above are covered by question No. 1 (b), as the proceedings were instituted after the 1st January 1941, on which date the Debt Redemption Act came into force. The question No. 1 (a), however, relates to proceedings which had terminated in a decree before the Debt Redemption Act came into force and that decree is sought to be amended u/s 8 of the Debt Redemption Act. The subject-matter of the three questions is so interdependent that the discussion as a whole will furnish -.the requisite answer to each of these questions. There is no doubt that the proceedings for redemption were initiated by an application u/s 12 of the Agriculturists' Relief Ace, but relief was sought by the applicant by invoking the benefits of Sections 8 and 9 as the Debt Redemption Act. Section 8 refers to the Amendment of decrees to which the Act applies passed before or after the commencement of the Act. The application is to be made to the Civil Court which passed the decree or to which the execution of the decree had been transferred for the amendment of the decree by reduction of the amount due under it according to the provisions of Sections 9 and 10 of the Act. sub-Section (2) of Section 8 says that a decree amended under the provisions of Sub-Section (1) shall be deemed to bear the date of the original decree. Section 9 lays down the procedure for accounting and determination of the amount due not only in respect of a decree dealt with under the provisions of Section 8 but also in a suit to which this Act applies. Section 2 (17) defines "suit to which this Act applies" as any suit or proceeding relating to a loan, but does not include proceeding under the provisions of the United Provinces Encumbered Estates Act, 1934. 4. Section 2 (17) defines "suit to which this Act applies" as any suit or proceeding relating to a loan, but does not include proceeding under the provisions of the United Provinces Encumbered Estates Act, 1934. 4. and sub-Section (6) of Section 2 defines "decree to which this Act applies" as a decree passed either before or after the commencement of this Act in a suit to which this Act applies. 5. Section 10 deals with the rate of future interest on decrees. It has been argued for the mortgagees that Section 2 (17) refers to a suit or proceeding under the Debt Redemption Act and a similar contention is raised in respect of the definition of decree to which this Act applies. We cannot agree. We are of opinion that the Debt Redemption Act was enacted to pro- vide for further relief from indebtedness to agriculturists and workmen, as its preamble shows, in addition to the relief that had been granted to agriculturist under the previous Debt Acts. The Debt Redemption Act widened the scope of relief by including workmen in the category of debtors entitled to relief. It did not create any separate machinery for the granting of relief. What was intended was that if a suit was instituted in the ordinary Courts of law by a creditor against a debtor of the kinds contemplated under the Act, the relief could be granted by the Court by resource to the provisions of Section 9 if the suit had not reached the stage of a decree or Section 8 if the suit had passed beyond that stage The principles regulating the grant of relief were laid down in Section 9 for the guidance of the Courts. If the suit had already terminated in a decree, the judgment debtor was given the right to apply to the Court which had passed the decree, or if the decree had been put into execution to the Court executing the decree, to give relief in accordance with the principles laid down in Section 9. Section 24 of the Debt Redemption Act which appears in Chapter IV "Miscellaneous" lays down that the pro- visions of the Code of Civil Procedure, 1908, save in so far as they are inconsistent with the provisions of 'this Act, shall apply to all proceedings under this Act. Section 24 of the Debt Redemption Act which appears in Chapter IV "Miscellaneous" lays down that the pro- visions of the Code of Civil Procedure, 1908, save in so far as they are inconsistent with the provisions of 'this Act, shall apply to all proceedings under this Act. The object of this section was to enable the Court to whom an application was made for extending the benefits of Sections 8 and 9 tioilo the provisions of the CPC in so far as they were not inconsistent with the provisions of the Debt Redemption Act. There is no clear provision in the Debt Redemption Ac; justifying the contention that a suit can be instituted under the provisions of the Debt Redemption Act or a decree pissed there- under. In any suit or proceedings relating to a loan which has been instituted by a creditor, it would be open to the debtor to claim the benefits of Sections 8 and 9 of the Debt Redemption Act, should he be entitled thereto, in addition to any other relief or benefits to which he may be legitimately entitled under any other law for the time being in force applicable to his case. So far as the facts of the case gave rise to the reference before us go, there was no regular suit but a proceeding u/s 12 initiated by an application which is treated as a plaint for redemption of the mortgage. The mortgagor is required to deposit the amount which he considers to be due under the mortgage along with his application in Court. u/s 13 notice is issued to the mortgagee to show cause why the redemption should not be allowed u/s 14 if the mortgagee accepts the deposit in full discharge of his mortgage, the Court orders redemption of the mort- gage. If the applicant does not appear and the mortgagee does not accept the deposit, the Court u/s 15 is bound to reject the application. u/s 16 if the applicant appears and the mortgagee does not or the mortgagee appears and does not accept the money deposit by the applicant in full discharge of his mortgage or objects to redemption on any other ground, the Court is under a statutory obligation to hold an enquiry to determine whether the applicant is entitled to redeem the mortgage or whether the money de- posited by him is sufficient. Various possibilities are mentioned in this section upon the existence of one or the other of which the Court is to regulate its decision accordingly. u/s 17 interest ceases to run from the date of the deposit if it is accepted by the mortgagee or is held sufficient. Section 18 is important and says that in all cases in which the Court orders redemption, it shall, if necessary, also put the applicant in possession of the mortgaged property, subject to any condition of the mortgage whereby a season or period of the year is fixed for surrendering possession. The order passed by the Court in such proceedings is made appealable u/s 23, sub-Section (2) of which lays down that no appeal shall lie from an appellate order passed under this section. In other words there is no right of a second appeal. Section 25 bars a suit to be brought in any Court for any relief which can be obtained by an application under Chapter III. Section 27 renders the provisions of the Code of Civil Procedure, 1908, in regard to suits applicable to all proceedings under Chapter III in which Section 23 appears so far as they can be made applicable. It also makes all orders passed under this Chapter executable in the same manner as decrees of Civil Court. 6. It follows from a summary of the provisions aforementioned that an application for redemption u/s 12, which takes the place of proceedings u/s 83 of the Transfer of Property Act of 1882, is in the nature of a suit for redemption and the Court in which it is brought must follow the procedure laid down in the various section of this Chapter and either decree the suit for redemption or dismiss it. In either case the order of the Court is open to one appeal but to no further appeal. The question which falls for determination is whether the proceedings for redemption taken by a mortgager are taken out of Chapter III of the U. P. Agriculturists' Relief Act by the mere fact that the mortgagor seeks further relief, u/s 9 in the shape of reduced interest. We are of opinion that the substantive relief for redemption is granted to the mortgagor under Chapter III and the intervention of the Debt Redemption Act is designed merely to reduce the amount of his indebtedness by cutting down the interest. We are of opinion that the substantive relief for redemption is granted to the mortgagor under Chapter III and the intervention of the Debt Redemption Act is designed merely to reduce the amount of his indebtedness by cutting down the interest. It is not possible to deny that the relief u/s 9 is a substantial relief but that cannot take the proceedings for redemption completely out of Chapter III and place them entirely' u/s 9 as if they have nothing to do with the Agriculturists, Relief Act. If this view is correct, we cannot but hold that the proceedings will be open only to one app al u/s 23 and there will be no second appeal. The right of appeal is a creature of the Statute and if Section 23 confers only one right of appeal and bars a further appeal, it is not possible to introduce another appeal by recourse to the provisions of Section 24 of the Debt Redemption Act. We have already indicated before that no independent proceedings are initiated by way of a suit under the Debt Redemption Act independently of a suit filed either in the Civil Court or instituted in any other Court under the provisions of any law for the time being in force. We are unable to hold, there- fore, that Sections 96 and 100 of the CPC confer a right of first and second appeal in a case instituted under Chapter III merely because of the provisions of Section 24 of the Debt Redemption Act. 7. Our answer to question No. 1 (b) would, therefore, be that in a case where the applicability of the provisions of the Debt Redemption Act comes into question in a suit filed after the Act came into force, the right of appeal will be governed by Sections 96 and 100 of the Code of Civil Procedure, except where the proceedings were instituted u/s 19 of the U. P. Agriculturists' Relief Act in which case there will be one appeal as provided by Section 23 and a possible revision of the case falls u/s 115 of the Code of Civil Procedure. 8. 8. Coming to the question of a decree passed before the Debt Redemption Act came into force, where a debtor applies to the civil Court which passed the decree for amendment of such a decree by reduction according to the provisions of Sections 9 and 10, the order passed by that Court amending or refusing to amend the decree will be appealable in the same way as the original decree was appealable. If the original decree was passed by the Civil Court, the provisions of Sections 96 and 100 of the CPC will apply to the case and there will be both a first and second appeal. If, however, the proceedings are instituted u/s \2, of the U. P. Agriculturists' Relief Act, the right of appeal will be deemed to be restricted by Section 23 of the Ac: and there will be no second appeal. In such a case the aggrieved party after exhausting his single right of appeal may have recourse to revision if the case can be brought within the ambit of Section 115 of the Code of Civil Procedure. 9. The subject matter of the second question in templates a case where a decree has been put into execution by the decree- holder and the judgment-debtor applies for the benefits of Section 8 of the Debt Redemption Act. Whether such an order of the execution Court amending or refusing to amend the decree u/s 8 is a matter relating to execution or discharge of the decree falling within the purview of Section 47 has been answered in the affirmative by two Full bench decisions of the Allahabad High Court (vide Mohammad Abdul Razzakv. Parvati Devi 1942 O A (Sup) 543 : A W R (H C) 319 : O W N 607 : A L J 554, and Musammat Keti Kuar v. Ram Saroop 1942 OA (Sup) 543 : AWR (H C) 340 : AIR 1942 All 390. The former decision was followed by a Single Judge of this Court in Shyam Sunder Lal v. Chanlm Divi 1913 O A (Sup) 83 : AWR (C C) 34 : O W N 159. The former decision was followed by a Single Judge of this Court in Shyam Sunder Lal v. Chanlm Divi 1913 O A (Sup) 83 : AWR (C C) 34 : O W N 159. In a Bench dedication of this Court in Harcharan Singh v. Mohammad Husain Khan 1943 O A 41 : A W R (C C) 17 : O W N 71 a revision application u/s 115 of the Code }f Civil Procedure was filed from an order of the Munsif directing amendment of the decree u/s 8 of the Debt Redemption Act. Upon a preliminary objection being taken that an appeal lay and not a revision the learned Judges after referring to the Full Bench decision of the Allahabad High Court in Mohammad Abdul Razzak v. Parvati Devi observed that the case was distinguishable as in the Allahabad case the proceedings were in fact proceedings to which the provisions of Section 47 were applicable while in the case before them Section 47 could not be invoked because the order was not passed in execution proceedings. The learned Judges, however, refused to decide the question whether apart from the provisions of Section 47 the order passed u/s 8 of the Debt Redemption Act was appealable. In Fatah Singh v. Rameshwar Singh 1944 O A 124 : A W R (C C) 121 : O W N 177 the appellants' Counsel conceded before the Bench that an appeal lay and not a revision against an order u/s 8 of the Act. 10. With all respect to the learned Judges we are unable to find ourselves in concur-. re nee with that view. The judgment- debtors, in Mst. Kctki Kunwar's case, had objected to the execution of the decree for Rs. 8,386 on the ground that the amount due under the decree was only Rs. 3,216 and the decree could not be executed for the amount which the decree-holders claimed and that it should be amended and reduced to Rs. 3,216. In the view of the Judges a clear controversy arose between the decree-holders and the judgment-debtors relating to execution, partial discharge or partial execution of the decree. They further observed that this our overly was finally determined by the execution Court and the determination was clearly a decree within the meaning of Section 47 and was open to appeal. 3,216. In the view of the Judges a clear controversy arose between the decree-holders and the judgment-debtors relating to execution, partial discharge or partial execution of the decree. They further observed that this our overly was finally determined by the execution Court and the determination was clearly a decree within the meaning of Section 47 and was open to appeal. In our judgment this would be a strained interpretation of Section 47. The question whether the judgment-debtor is entitled to a reduction of the decretal amount by the application of the provisions of a special Act is scarcely a question which can be considered to relate to the execution of the decree, its discharge or satisfaction. It is agreed that all questions arising between the parties to the decree in the execution proceedings do not necessarily relate to execution, discharge or satisfaction of the decree, and such of them as do, can alone fall within the purview of Section 47. If the decree is amended, for instance on the ground of some clerical or accidental error, nobody has ever contended that the order becomes appealable u/s 47, as it relates to the execution, discharge or satisfaction of the decree. Under sub-Section (2) of Section 8 the amended decree is not to be regarded as a fresh decree passed as it were under the Debt Redemption Act but the original decree bearing the same date with the only difference that it is reduced in amount. Whether the execution Court re- opens the decree and reduces the amount u/s 8 or refuses to re-open the decree, would scarcely justify the view that the question is one relating to the execution, discharge or satisfaction of the decree. The acceptance of the Allahabad view leads to the further anomaly that whereas the right of appeal in proceedings u/s 12 of the U. P. Agriculturists' Relief Act is restricted to one appeal as provided by Section 23, this right is automatically enlarged, conferring a right of first and second appeal only if the party seeking relief under the Debt Redemption Act prefers not to raise the question until the decree-holder takes out execution proceedings. That in the case above mentioned party should have only one statutory right of appeal before the execution and two after the proceedings are started would lead to reduction ad absurdum and manifest and miscarriage of justice. That in the case above mentioned party should have only one statutory right of appeal before the execution and two after the proceedings are started would lead to reduction ad absurdum and manifest and miscarriage of justice. We are unable to attribute such an intention to the Legislature which must be deemed to have had the provisions of Chapter III of the Agriculturists' Relief Act in view at the time when the Debt Redemption Act was passed. Accordingly we hold that an order of the Execution Court amending or refusing to amend the decree is not an order which can strictly be regarded as one relating to execution, discharge or satisfaction of the decree. We, therefore, answer question No. 2 in the negative. 11. As a result of the forgoing discussions we return the following answers to the questions : 1. (a). The order passed by the Court amending or refusing to amend the decree will be appealable in the same way as the original decree was appealable. If the original decree was passed by the Civil Court, it will be open to first appeal and second appeal under Sections 9") and 100 of the CPC respectively. If the decree was passed u/s 12 of the U. P. Agriculturists Relief Act, the right of appeal will be restricted by Section 23 of the Act and there will be no right of second appeal. The decree will be revisable if the case can be brought within the purview of Section 115 of the Code of Civil Procedure, (b) In a case where the applicability of the provisions of the Debt Redemption Act comes in question in a suit filed after the Act came into force, the right of appeal will be governed by Sections 96 and 100 of the CPC except in a case where the proceedings were instituted u/s 12 of the Agriculturists' Relief Act in which case there will be only one appeal u/s 23 and no second appeal. A revision will, however, lie at the instance of the aggrieved party if the case falls u/s 115 of the Code of Civil Procedure. 2. The order refusing to amend the decree u/s 8 of the Debt Redemption Act is not an order relating to execution, discharge or satisfaction -.of the decree and is, therefore, not appealable u/s 47 of the Code of Civil Procedure. 3. 2. The order refusing to amend the decree u/s 8 of the Debt Redemption Act is not an order relating to execution, discharge or satisfaction -.of the decree and is, therefore, not appealable u/s 47 of the Code of Civil Procedure. 3. The proper court-fee payable is Rs. 4 in view of our decision that a revision application lies in the present case.