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Allahabad High Court · body

1961 DIGILAW 305 (ALL)

Bhawani Shankar v. Govind Dass

1961-10-27

A.P.SRIVASTAVA, B.DAYAL

body1961
JUDGMENT Srivastava, J - The appellant in Execution First Appeal is a legal representative of the original judgment-debtor. The decree-holders had obtained a simple money decree against the original judgment-debtor Smt. Sarju Bai and had got the decree executed in two ways simultaneously. In one execution case they were proceeding against some immovable property of the judgment-debtor. In the other application for execution out of which the present Execution First Appeal has arisen they applied for the attachment and sale of certain zamindari compensation bonds belonging to the judgment-debtor. The bonds were attached but before anything could be done further the decree-holders applied that they did not want to proceed with this application for execution and prayed that it be dismissed. This prayer of the decree-holders has been accepted and the execution application so far as the compensation bonds were concerned has been dismissed. The original judgment-debtor died during the pendency of the case and the appellant was brought on record in her place. The judgment-debtor objected to the dismissal of the application for execution and raised two points. The first was that it was not open to the decree-holders to say that they would not proceed with the execution application and that it should be dismissed. The other was that as soon as the compensation bonds were attached under Section 9 of the U.P. Zamindars' Debt Reduction Act the executing Court was bound to enter satisfaction to the extent of the amount calculated according to the formula given in Sch. II of the Act. These contentions of the judgment-debtor were not accepted by the executing Court and have been reinterated before us in the present appeal. 2. The first contention can be easily disposed of. The decree-holders had approached the Court with an application for execution and had made a particular prayer. It was, in our opinion, open to the decree-holders at any stage to state before the Court that they did not want to proceed with the execution and that it should be dismissed. The judgment-debtor could not have any say in the matter and could not prevent the execution application being dismissed at the request of the decree-holders. The only provision of law to which our attention has been drawn on behalf of the appellant in this connection is Or. XXI, R. 57, Cr. The judgment-debtor could not have any say in the matter and could not prevent the execution application being dismissed at the request of the decree-holders. The only provision of law to which our attention has been drawn on behalf of the appellant in this connection is Or. XXI, R. 57, Cr. P. C. That rule is, however, wholly inapplicable to the present case because it applies only when the decree-holder is in default. In the present case the decree-holders were never in default. They deliberately wanted the execution application to be dismissed and there was no question of default. Our attention has not been drawn to any other provision under which the decree-holders were debarred from dropping the execution proceedings and getting the execution application dismissed on the ground that they did not want to proceed with it. 3. The other contention was also untenable and overlooked the express terms of Section 9 of the U.P. Zamindars' Debt Reduction Act. That section reads as follows: "Where a decree to which this Act U.P. Zamindars' Debt Reduction Act, 1952 applies relating to other than a secured debt is executed by attachment and sale of the bonds granted to the judgment-debtor on account of compensation or rehabilitation grant for his estate, the Court executing this decree shall, notwithstanding anything in any law, enter satisfaction in accordance with the formula given in Schedule II." An analysis of the section will show that three things are necessary before any satisfaction can be entered in respect of any decree. Those things are: - (i) That the decree should be one to which the Act applies; (ii) that it should not relate to a secured debt; and (iii) that it should be executed by attachment and sale of bonds granted to the judgment-debtor on account of compensation or rehabilitation grant for his estate. 4. The first two essentials were certainly fulfilled in the present case but the third was not. In the present case the decree-holders had certainly applied for execution by attachment and sale of compensation bonds but the decree had not been executed in that manner. 4. The first two essentials were certainly fulfilled in the present case but the third was not. In the present case the decree-holders had certainly applied for execution by attachment and sale of compensation bonds but the decree had not been executed in that manner. The stage of sale never arrived and the use of the words "and sale" after the word "attachment" in the section makes it clear beyond doubt that the satisfaction could be entered by the executing Court in pursuance of the section not after attachment only but after sale had followed the attachment. Otherwise the words "and sale" would not have been used in the section at all. 5. Learned counsel for the appellant, however, urged that in Section 9 the word `and' should be interpreted as meaning `or'. He also urged that actual execution by attachment and sale was not necessary under the section; merely applying for execution in that manner, that is by attachment and sale, would be enough to bring the section into play. 6. It is true that sometimes in order to carry out the intention of the `legislature it is necessary for the Court to interpret the word `and' as meaning `or' in a statute. There must, however, be compelling reasons for taking that course and the intention of the Legislature must be clear in that respect. In the present case we do not find anything to justify our reading the word `or' for the word `and' as used in the section. Had it been the intention of the Legislature to permit satisfaction to be entered simply on the basis of attachment, it would not have entered the words `and sale' in the section at all. When the words "attachment and sale" were used it was clearly indicated that both `attachment' and `sale' were necessary before any satisfaction could be entered under the section. We are also not prepared to accept the argument that satisfaction is to be entered under the section simply because the decree-holders apply for attachment and sale without any actual attachment or sale having taken place. Had that been the intention the words could not have been the "decree . . . We are also not prepared to accept the argument that satisfaction is to be entered under the section simply because the decree-holders apply for attachment and sale without any actual attachment or sale having taken place. Had that been the intention the words could not have been the "decree . . . is executed." In that case the words would have been "an application is made for the execution of the decree by attachment and sale." Obvious complications would arise if satisfaction is to be entered only on the basis of the application made with a prayer for attachment and sale. 7. We are, therefore, not prepared to interpret Section 9 in the manner contended for on behalf of the appellant and to hold that even though the bonds were never sold simply because they were attached the executing Court was bound to enter satisfaction in accordance with the formula given in Sch. II. 8. Learned counsel wanted to draw an analogy from Or. XXI, R. 56 C.P.C. and urged that sale of the bonds was not necessary at all. The only thing that could be done after the attachment, he urged, was to endorse the bonds in favour of the decree-holders. We may mention that even the endorsement was not done in the present case. The bonds were not transferred or sold in any manner. The analogy from Or. XXI, R. 56, C.P.C. is entirely misleading. That is a special rule made for current coins or currency notes. The compensation bonds could not in any way be put at par with current coins or currency notes. The usual rule with reference to the negotiable instruments is that after attachment they are sold and the amount fetched by sale is credited towards the decree. The only departure from the rule which the Legislature intended to make under Section 9 was that in case compensation bonds were sold what was to be credited towards the decree was not the amount fetched by the sale but the amount calculated on the basis of the formula in Sch. II of the U.P. Zamindars' Debt Reduction Act. But this did not obviate in any way the necessity of selling the bonds. 9. The appellant could not, therefore, insist that satisfaction in respect of the decree should have been entered on it according to the formula in Sch. II of the U.P. Zamindars' Debt Reduction Act. But this did not obviate in any way the necessity of selling the bonds. 9. The appellant could not, therefore, insist that satisfaction in respect of the decree should have been entered on it according to the formula in Sch. If of the U.P. Zamindars' Debt Reduction Act only because certain bonds had been attached at the instance of the decree-holders though they were never sold. 10. Both the points urged are, therefore, clearly untenable and the appeal must fail. It is accordingly dismissed with costs.