Shankarlal vs Onkarlal

Dixit, J.—This appeal arises out of execution proceedings of a money decree held by the respondents against the appellant. It appears that in one of the earlier execution proceedings of the decree an agreement was arrived at between the parties where under it was agreed that the decrial amount would be payable in certain instalments and a charge for the payment of the amount would subsist against his other landed property also. On 11th February, 1952 the decree-holder filed an application for execution of his decree in the Court of the District Judge, Ujjain. The judgment-debtor objected to the execution application stating that as the Zamindari properly had vested in the State, the decree-holder was not entitled to execute the decree from the compensation payable In respect of Zamindari property against which a charge had been created; and that the decree-holder could not also proceed against other properly of the judgment debtor. In the meantime the judgment-debtor made an application before the Claims Officer under Sec. 18 of the Madhya Bharat Zamindari Abolition Act, 1951. The Claims Officer issued a direction to the executing Court to stay the execution proceedings before him. This direction was made by the Claims Officer under Sec. 19 of the Zaminadari Abolition Act. Accordingly the proceedings were stayed by the executing Court. It is against this order of the Executing Court that the present appeal is directed.

The argument of Mr. Chafekar, learned Counsel for the appellant, was that under Sec. 19, a direction could be made only with regard to secured debts'' and that the decretal debt here was not a secured debt within the meaning of Sec. 16(a) of the Act. It was said that under the definition of Secured debt'' given in Sec. 16(a) a debt for the payment of which a charge had been created by a decree or in execution proceedings, was not a secured debt, and that in any case there was no bar to the realisation of the decretal amount from other property belonging to the judgment-debtor. There is no substance in this appeal and it must be dismissed.

Sec. 16(a) of the Act defines secured debt or secured claim as meaning a debt or claim subsisting on the date of vesting whether due or not due and secured by the mortgage or a charge of the proprietary rights divested under Sec. 3......... It is clear from this definition that if a charge is created by a decree or if the parties agree to create a charge against some property belonging to the judgment-debtor, in the execution proceedings for the payment of the decretal amount, the decretal amount would be a secured debt. The definition given in Sec. 16(a) does not confine the meaning of secured debt to only those cases of charges created in a particular manner. In this case it is not disputed that an application was made by the judgment-debtor under Sec. 18. Now Sec. 19(1) says........ Upon receipt of an application under Sec. 18 if the Claims Officer finds that any suit or proceeding is pending against the proprietor for the recovery, of any, amount in respect of a secured debt or claim, he shall issue a notice to the Court concerned and thereupon the Court shall stay such suit or proceeding," The question, therefore, it whether, when a direction has been made under Sec. 19, the decree-holder is entitled to proceed with the execution of the decree against property other than the Zamindari property of the judgment-debtor. The words in Sec. 19(1) "finds that any suit or proceeding is pending against the proprietor" and the words occurring at the end of Sec. 19(1) viz, "thereupon the Court shall stay such suit or proceedings" unmistakably show that the Claims Officer has to make a direction for the stay of all kinds of proceedings for the recovery of any amount in respect of the secured debt or claim which a proprietor has filed before him under Sec. 18 and that when a direction has been issued by the Claims Officer under Sec. 19(1), no Court can proceed for the recovery of any amount in respect of the debt or claim. This is made further clear by Sec. 32 of the Act which says that the jurisdiction of the Civil Courts shall, except as otherwise provided in this Act, be barred in respect of the recovery of any secured debt or claim determined under Sec. 23 except in the manner provided for In Sec. 27. Now Sec. 27 permits only that creditor in whose favour an order under Sec. 26 has been passed to apply to the Civil Court for the sale of other encumbered property, when the amount of compensation is found to be insufficient to satisfy the creditor''s claim, as determined under Sec. 23.

For all these reasons this appeal is dismissed with costs.

Samvatsar J.

I agree.