Jhamola Kunwar v. Kailash Chandra Jain — 1961 DIGILAW 264 (ALL)

JUDGMENT Srivastava, J. - These two appeals are on behalf of the decree-holder. There is a cross-objection by the judgment-debtor in Ex. F. A. No. 468 of 1957. The circumstances in which these appeals have arisen are these: - Lala Sumer Chand Jain died leaving a widow Smt. Jhamola Kunwar and no son. He belonged to the Jain community. Smt. Jhamola Kunwar adopted Kailash Chandra Jain. An agreement was arrived at between her and the adopted son, according to which the son was to pay a maintenance allowance of Rs. 400 a month to Smt. Jhamola Kunwar on certain conditions. A charge was created in respect of the maintenance allowance over some properties of the son including zamindari property. The son did not pay the maintenance allowance and Smt. Jhamola Kunwar had to file a suit for recovering the arrears of her allowance. In the suit, however, she did not seek to enforce the charge which had been created in the agreement in respect of the allowance. She only claimed a simple money decree for the amount of the allowance that was in arrears from the 1st July 1941 to the 30th April 1947. The suit was decreed on the 22nd December 1952. The decree-holder then put the decree in execution in 1953. By that time the U.P. Zamindars' Debt Reduction Act (Act No. XV of 1953), which will be referred to hereinafter as the Act, had come into force. The judgment-debtor Sri Kailash Chandra Jain, therefore, put in an application under Section 4 read with Section 10 of the Act praying that the amount of the decree be reduced. The application was opposed on behalf of the decree-holder but was allowed by the executing Court by its order dated the 17th April 1954. Against that order the decree-holder has filed appeal No. 198 of 1954. The amount of the decree having been reduced when the decree-holder wanted to proceed in execution of the decree against the house property of the judgment-debtor the latter put in an application under Section 8 of the Act contending that it was not open to the decree-holder to proceed against the house property. This objection was allowed by the order dated the 25th July 1956. Against that order the decree-holder has filed Execution First Appeal No. 468 of 1956. 2. This objection was allowed by the order dated the 25th July 1956. Against that order the decree-holder has filed Execution First Appeal No. 468 of 1956. 2. A preliminary objection has been raised in respect of Execution First Appeal No. 198 of 1954. It is urged that the order against which the appeal has been filed was not an appealable order and could be questioned only in a revision. The argument is that an application for the reduction of the amount of a decree under Section 4 of the Act lies only with the Court which passed the decree. The prayer for reduction cannot, therefore, be made to the executing Court. In the present case though the judgment-debtor had headed the application he had made for the reduction of the amount as one under Section 47 of the Civil Procedure Code read with Secs. 4 and 10 of the Act it was not really an objection filed in the execution department and could not be treated as an objection under Section 47, C.P.C. The prayer was addressed really to the Court which had passed the decree. If it decided to reduce the amount by applying Section 4 of the Act the only remedy open to the decree-holder was either to question the order in revision or to wait till the decree was actually amended and then to file an appeal against the decree. Reliance is placed in support of this contention on a division bench case of this Court reported in Firm Nand Ram, Chotey Lal v. Raja Kishori Ram Singh, 1956 ALJ 704. This preliminary objection appears to be well founded and its force has been conceded to by the learned counsel for the appellant. He has, therefore, prayed that the appeal be treated as an application in revision. We have acceded to that prayer and shall deal with the appeal as an application in revision. Two points are pressed in support of this application in revision on behalf of the applicant. He urges in the first place that Section 10 of the Act applies only to suits and decrees relating to arrears of guzara or maintenance allowance." In the present case what the judgment-debtor had agreed to pay to the decree-holder by the agreement dated the 26th April 1927 was neither a guzara nor a maintenance allowance. He urges in the first place that Section 10 of the Act applies only to suits and decrees relating to arrears of guzara or maintenance allowance." In the present case what the judgment-debtor had agreed to pay to the decree-holder by the agreement dated the 26th April 1927 was neither a guzara nor a maintenance allowance. It was really an annuity which he had promised to pay in consideration of the fact that certain disputes between him and the decree-holder relating to his adoption had been settled. Learned counsel referred in this connection to certain observations made in a previous suit between the parties in which the nature of the allowance which the judgment-debtor had promised to pay was considered. The decision is reported in Kailash Chandra Jain v. Jhamola Kunwar, AIR 1945 Allahabad 431 : 1945 ALJ 471. At page 433 of the report it was observed: - "Even in the last agreement of 1927 the appellant agreed to give her a house besides paying her the allowance. In consideration for the agreement about the payment of allowance various other disputes were settled between the parties. In my judgment Kailash Chand's agreement was one to pay an annuity and not merely to pay certain sums from time to time to enable Mt. Jhamola Kunwar to supply herself with the necessities and amenities which he would have had to supply if she had lived with him." On the basis of these observations learned counsel urged that what was payable to the decree-holder was not a maintenance allowance at all but was really an annuity. He also referred to an unreported decision of a learned single Judge of this Court in Manik Devi v. Dulari Devi, 1961 ALJ 23. In that case a certain person had gifted some property to another and the donee had agreed to pay an allowance to the donor. A charge in respect of the amount payable had also been created by the agreement. It was held that the allowance payable under the agreement was not an allowance contemplated by Section 10 of the Act. 4. The other contention of the learned counsel is that the section of the Act of which the judgment-debtor claimed benefit was Sec. 4. Under the second clause of that section the benefit of that section can be claimed only if a decree had been passed in which some property was charged. 4. The other contention of the learned counsel is that the section of the Act of which the judgment-debtor claimed benefit was Sec. 4. Under the second clause of that section the benefit of that section can be claimed only if a decree had been passed in which some property was charged. In the present case he pointed out that the decree passed in favour of the decree-holder was a simple money decree. No property was charged under it. Even in the suit the decree-holder did not seek to enforce any charge. She had claimed only a simple money decree. Sec. 4 was, therefore, not applicable at all and that being the only section under which a reduction could be claimed the amount of the decree could not be directed to be reduced. 5. The terms "guzara" or "maintenance allowance" have not been defined in the Act and are also not qualified by any adjectives in Sec. 10. The natural meanings of these expressions have, therefore, to be attributed to them. We have, therefore, not found it easy to appreciate the reasons which persuaded Mr. Justice Lal to put a narrow interpretation on those terms in the case of Manik Devi v. Dulari Devi, 1961 ALJ 23 and limit their scope to "guzara" or "maintenance allowance" of a particular kind. We, however, do not wish to express any final opinion on the point and shall assume for the purposes of the present case that the amount payable to the decree-holder under the agreement of 1927 was a maintenance allowance or guzara. 6. The more important question, in our opinion, is whether on that assumption the judgment-debtor could in the present case claim the benefit of Sec. 4. It is not disputed that that was the only section under which the amount of the decree could be reduced. The section, as it stands, appears to be clearly inapplicable to the present case. Cl. (2) of the section specifically provides that reduction can be made only where some mortgaged property stands charged under the decree, the amount of which is sought to be reduced. The property charged may consist exclusively of an estate or may consist of an estate along with other properties. The judgment-debtors may be one or more. The section provides what is to be done in either of these cases. The opening words of sub-sec. The property charged may consist exclusively of an estate or may consist of an estate along with other properties. The judgment-debtors may be one or more. The section provides what is to be done in either of these cases. The opening words of sub-sec. (2) of Section 4 are, however, clear and unambiguous: "Where the mortgaged property charged under the decree consists exclusively of estate and such estate has been acquired under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950, the court shall....." It follows necessarily that the provisions of the section can apply only if some property has been charged under a decree. It is not denied that in the present case the decree-holder had not sought to enforce any charge in her suit and no property stood charged under the decree that was passed in her favour. On its terms, therefore, Sec. 4 was not attracted and no reduction could be made under its provisions. 7. Learned counsel for the judgment-debtor, however, urged that Section 4 has to be read in the present case with some modifications. He relied on Section 10 and urged that that section clearly covered the present case. According to him in view of that Section 4 had to be applied with necessary changes. The change which he urged ought to be made in Section 4 for the proper application of Section 10 in the present case is that the requirement of a decree haling been passed charging some property should be dispensed with. He argued that if the maintenance allowance in favour of the decree-holder was secured by the creation of a charge that was enough to entitle the judgment debtor to have the amount of the decree reduced under the Act. Learned counsel referred to the preamble of the Act and to the purpose for which it had been enacted. He said that the Act had been enacted for giving relief to zamindars by the reduction of their debts and argued that the Act was to be beneficially construed in favour of the debtors. Sec. 10 of the Act reads as follow: - "The provisions of this Act shall mutatis mutandis apply to a suit or decree for recovery of arrears of guzara or maintenance allowance in which any estate whether alone or along with other property is mortgaged or is otherwise. Sec. 10 of the Act reads as follow: - "The provisions of this Act shall mutatis mutandis apply to a suit or decree for recovery of arrears of guzara or maintenance allowance in which any estate whether alone or along with other property is mortgaged or is otherwise. Charged under any law, decree, agreement or document, as if the guzara or the maintenance allowance were a debt, and the whole of the immoveable property so mortgaged or charged shall for purposes of Secs. 3, 4 and 5 be deemed to be mortgaged property." The English version of Section 10 which we have quoted above is to a certain extent rendered obscure by the use of the words "in which" after the word "allowance." We had, therefore, to refer to the Hindi version of the Act which was published in the Extraordinary Government Gazette dated the 25th May, 1953. The Hindi version is as follows: - " vko';d ifjorZuksa ds lkFk bl vf/kfu;e ds micU/k ,sls xqtkjk ;k Hkj.k&Hkks"k.k dh o`fRr (Maintaenance allowance) dh cdk;k dh olwyh dh fMdzh ;k okn esa] ftuesa dksbZ Hkh LFkku vdsyk ;k vU; lEifRr lfgr cU/kd fd;k x;k gks] vFkok fdlh fof/k] fMdzh] vuqcU/k (agreement) vFkok ys[; ds varxZr vU; fdlh izdkj ls Hkkfjr gks] mlh izdkj ykxw gksaxs ekuks xqtkjk ;k Hkj.k&Hkks"k.k dh o`fRr fju gks vkSj /kkjk 3 4 vkSj 5 ds iz;kstuksa ds fy, bl izdkj cU/kd dh gqbZ ;k Hkkfjr lc vpy lEifRr cU/kd dks gqbZ lEifRr le>h tkosxhA" If the words "in which" used in the English version are interpreted keeping in view the Hindi version the intention of the Legislature becomes clear. The words "in which" really mean "in respect of which." The expression "in which any estate whether alone or along with other property is mortgaged or otherwise charged under any law, decree, agreement or document" describes the "guzara" or "maintenance allowance" to which the section is applicable and not the "suit or decree" for realisation of the arrears. The section applies not to all kinds of "guzara" or "maintenance allowance" but only to those for securing which some estate either alone or along with some other property is mortgaged or charged in any way. 8. The real purpose of Section 10 and the end it was intended to achieve is not difficult to ascertain. The section applies not to all kinds of "guzara" or "maintenance allowance" but only to those for securing which some estate either alone or along with some other property is mortgaged or charged in any way. 8. The real purpose of Section 10 and the end it was intended to achieve is not difficult to ascertain. Had the section not been there the provisions of the Act would not have been applicable to suits or decrees for the recovery of arrears of guzara or maintenance allowance. The liability in respect of them would not have amounted to a debt as defined in the Act. Even if a guzara or maintenance allowance had been secured by the creation of a charge over some property the charge would not in many cases have amounted to a mortgage as defined in the Act. The person liable to pay the guzara or maintenance allowance could not have been considered a "mortgagor." In order to make the provisions of the Act applicable to claims for guzara or maintenance allowance also it became necessary to enact the section. It was provided in it that the provisions of the Act would be applicable even to suits or decrees for the recovery of arreas of guzara or maintenance allowance provided the guzara or the maintenance allowance was one in respect of which any estate whether alone or along with other property was mortgaged or had otherwise been charged. The charge to secure the guzara or the maintenance allowance could be created (1) under any law, (2) by a decree, (3) by an agreement, or (4) by a document. If the guzara was one of this kind it could be treated as a debt for the purposes of the Act. To that extent the definition of the word "debt" was widened and the provisions of Secs. 3 and 5 of the Act became applicable to suits for the recovery of guzara of that particular kind. Sec. 4 became applicable to decrees passed in respect of that kind of guzara or maintenance allowance. To that extent the definition of the word "debt" was widened and the provisions of Secs. 3 and 5 of the Act became applicable to suits for the recovery of guzara of that particular kind. Sec. 4 became applicable to decrees passed in respect of that kind of guzara or maintenance allowance. Guzara or maintenance allowance which was not secured by a mortgage or charge of an estate alone or with other property or in respect of which the charge had not been created by any law, decree, agreement or document were to stand outside the purview of the Act and no provision of the Act could be applicable in respect of them. 9. In respect of other debts while Secs. 3, 4 and 5 were being applied reduction could be made only with reference to the estate of the debtor as defined in the Act. In respect of guzara and allowance, however, Sec. 10 provided that if the property that was mortgaged or charged was an estate along with properties of other kinds all the properties were to be taken into account for the purposes of reduction under Secs. 3 and 4. That was another modification subject to which Secs. 3 and 4 were to be applied to claims for arrears of guzaras and allowances of the kind mentioned in Sec. 10. The words "mutatis mutandis" used in Section 10 only mean "with the necessary alterations." The use of these words was necessary because but for them it would not have been possible to utilise some of the provisions of the Act in cases of guzaras or allowances even if they were treated as debts. For instance, in respect of guzara or maintenance allowance for which a carhge had been created by law or by a decree the person liable to pay could not be treated as a mortgagor and in some of the sections of the Act the word "mortgagor" has been used. Some change in word "mortgagor" would have to be made in order to utilise those sections in the case of such guzaras or allowances. 10. As we read Section 10, we do not find anything in it to justify the dispensing with the essential requirement of sub-sec. (2) of Section 4 that the decree whose amount can be reduced must be a decree charging some property. 10. As we read Section 10, we do not find anything in it to justify the dispensing with the essential requirement of sub-sec. (2) of Section 4 that the decree whose amount can be reduced must be a decree charging some property. We are unable to read Section 10 as laying down that in all cases of decrees for arrears of guzaras or allowances if some property stood charged for the guzara or allowance. under any law, decree, agreement or document the amount is to be reduced by the application of Section 4 even though the decree whose amount is sought to be reduced does not itself provide for the enforcement of the charge or mortgage and is only a simple money decree. Had that been the intention of Section 10 some words would have been used in it to show that Section 4 was to be modified in that manner in its application to suits or decrees for arrears of guzara or maintenance allowance. No such words have been used in the section. 11. It is true that the Act was enacted for the benefit of zamindars whose estates had been acquired under the provisions of the U.P. Zamindari Abolition and Land Reforms Act and is as far as possible to be interpreted in a beneficial manner in their favour. But if the provisions of the Act are analysed it will be found that it was not intended to reduce all debts of zamindars. The Act was intended to apply only to those debts of the zamindars which were sought to be realised by the sale of their zamindari property or from the compensation and rehabilitation bonds which they had received in lieu of their zamindari property. The Act does not appear to be applicable in respect of simple money decrees or debts which are sought to be realised by proceeding against non-zamindari properties of the zamindars or for the realisation of which no proceedings are being taken against the compensation and rehabilitation bond. Sec. 3 of the Act applies to suits pending when the Act was enforced or to suits filed after that date. By its terms it applies to suits relating to secured debts but its various provisions make it clear that the amount of claim is to be reduced with reference to the mortgaged property. Sec. 3 of the Act applies to suits pending when the Act was enforced or to suits filed after that date. By its terms it applies to suits relating to secured debts but its various provisions make it clear that the amount of claim is to be reduced with reference to the mortgaged property. The words "relating to a secured debt" should be interpreted keeping that fact in view. The expression cannot, in our opinion, mean suits for the recovery of debts which were at one time secured or suits which had some connection with debts which were secured at any stage. The natural meaning of the expression appears to be a suit to enforce the security by which the debt was secured. Sec. 4 applies to decrees already passed and as we have pointed out sub-sec. (2) of the section clearly provides that its provisions can be applied only if some estate is charged under the decree. Similarly sub-sec. (3) applies if the decree charges some estate along with other property. Under Section 5 the mortgagors or judgment-debtors entitled to an estate are for the purposes of Secs. 3 and 4 to be treated as separate units. Sec. 6 provides for the amount for which a decree is to be passed after the claim had been reduced under Section 3, Sec. 7 applies to the recording of the satisfaction of that part of the decree in respect of which the amount has been reduced under Sec. 4. Sec. 8 applies to a decree relating to a secured debt whose amounts have been reduced under Section 4 and provides that such decrees can be enforced against three-fourths of the compensation bond and also against the rehabilitation bonds. It says that the amounts of such decrees shall not be realisable against the other properties of the Judgment-debtors or mortgagors. Sec. 9 applies to decrees for unsecured debts which are being sought to be executed against compensation and rehabilitation bonds. In that case they are to be held satisfied to a certain extent as provided in the Schedule. All the provisions of the Act are, therefore, applicable only to those debts of the former zamindars which were sought to be enforced against the zamindari property or were sought to be realised from the compensation and rehabilitation bonds received in lieu of such properties. All the provisions of the Act are, therefore, applicable only to those debts of the former zamindars which were sought to be enforced against the zamindari property or were sought to be realised from the compensation and rehabilitation bonds received in lieu of such properties. None of the provisions appear to be attracted to debts like the one in dispute which was claimed as simple money debt, in respect of which there was no prayer for enforcing any security and for which a simple money decree has been passed. The debt was certainly secured by a charge originally but the charge was given up by the decree-holder when she filed the suit she was trying to enforce that charge. No estate stands charged under the decree. 12. We do not find it possible to accept the contention of the learned counsel for the respondent that Section 10 should be interpreted in such a manner that relief should be given to the judgment-debtor in the present case even though the decree sought to be executed against him was not sought to be executed against any compensation or rehabilitation bonds. Had the decree in the present case charged the estate of the judgment-debtor alone or along with some other property it would have been open to the judgment-debtor to claim the benefit of Section 4 with the help of Section 10. But unfortunately for him the decree is simple money decree and is being sought to be realised from his house property. There is no provision in the Act of which the judgment-debtor can take advantage in the present case. 13. We are, therefore, unable to uphold the decision of the learned Civil Judge that decision of the learned Civil Judge that Section 4 applied to the present case and under its provisions the amount of the decree could be reduced. His order directing a reduction of the amount of the decree must therefore, be set aside. The Execution First Appeal No. 198 of 1954 treated as an application in revision must be allowed. The learned Civil Judge really exceeded his jurisdiction by directing the reduction of the amount when the amount could not have been reduction of the amount when the amount could not have been reduced. 14. The other Execution First Appeal No. 468 of 1956 must also succeed. The learned Civil Judge really exceeded his jurisdiction by directing the reduction of the amount when the amount could not have been reduction of the amount when the amount could not have been reduced. 14. The other Execution First Appeal No. 468 of 1956 must also succeed. That has been preferred against an order of the learned Civil Judge directing that execution could not proceed against the house property of the judgment-debtor. The order was passed under sub-sec. (2) of Section 8 of the Act. That sub-section could, however, apply only when the amount of a claim or decree had been reduced under Section 3 or 4. As in the present case Section 4 was not applicable and the amount of the decree could not be reduced under that section sub-sec. (2) of Section 8 became inapplicable and the decree-holder could not be prevented from proceeding to execute the decree against the properties of the judgment-debtor other than the compensation and rehabilitation bonds. This appeal too is, therefore, allowed and the impugned order is set aside. 15. The cross-objection filed in connection with Execution First Appeal No. 468 of 1956 must fail. The only point raised in it was that not only the amount of the decree but also the amount of the cost and pendente lite and future interest could be realised from the compensation and rehabilitation bonds only and not from any other property of the judgment-debtor. As in our opinion the whole amount of the decree could be realised from the other properties of the judgment-debtor the cross-objection cannot be accepted as tenable. 16. The result is that both the Execution appeal and the application in revision are allowed with costs and the cross-objection is dismissed with costs.