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PETITIONER: SHANKAR PRAHLAD DESHPANDE & ORS.

       Vs.

RESPONDENT: SETH GENDALAL MOTILAL PATNI & ORS.

DATE OF JUDGMENT: 29/10/1969

BENCH:

ACT: Madhya  Pradesh  Abolition of Proprietary  Rights  (Estates, Mahals  and  Alienated  Lands) Act 1 of 1951,  ss.  22,  23- Discharge  of debt for nonsubmission of statement of  claim- Fresh  order under s. 22 by claims officer  necessary  where previous order to submit claim annulled by Board of Revenue.

HEADNOTE: A mortgagor applied to the Claims Officer under s. 19 of the Madhya  Pradesh  Abolition of Proprietary  Rights  (Estates, Mahals and Alienated Lands) Act 1 of 1951 for  determination of  the debt due to the mortgagee and for scaling  down  the debt.    The   mortgagee  contended  that   the   debt,   by adjudication  of  court, had been merged into a  decree  and there  was  no  secured debt which could  be  determined  or scaled down.  The Claims, Officer held that there was a debt due to the mortgagee, that it was a secured debt and that he had jurisdiction for "determining the debt" and directed the mortgagee to submit a statement of the claim under s. 22  of the Act.  On appeal by the mortgagee, the Board of  Revenue, following  the  judgment of the High Court in  Ramkishan  v. Board  of  Revenue, Madhya Pradesh I.L.R. [1954]  Nag.  430, held  that the Claim Officer had ’no jurisdiction to  decide whether  the debt was a secured debt.  Upon the  High  Court overruling   Ramkrishna’s  case  in  Jethalal  Bhawanji   v. Prabhakar  Sadasiv  I. L.R. [1956] Nag. 147,  the  mortgagee field  a statement of his claim before the  Claims  Officer. The mortgagor contended that the debt stood discharged under s.  22  of  the Act as the mortgagee had failed  to  file  a statement of his claim as originally directed by the  Claims Officer.   The  Claims Officer upheld the  contention.   The Commissioner  in  appeal set aside the order of  the  Claims Officer  discharging  the debt and a petition  in  the  High Court   against  the  Commissioner’s  order  was   summarily dismissed.  Dismissing the appeal to this Court, HELD  : Section 22 enacts a penal provision and  unless  the conditions  precedent are satisfied, the debt could  not  by operation of the statute be discharged. In  the  present case the order of the  Claims  Officer  was reversed  by the Board of Revenue, and all directions  given by  the Claims Officer, pursuant to his order  calling  upon the  mortgagee  to  file a statement  of  his  claim,  stood annulled.   Thereafter the -Claims Officer did not pass  any order  under s. 22 of the Act 1 of 1951 directing  that  the proceeding  shall  continue  and further  directing  that  a notice  shall  issue calling upon the mortgagee  to  file  a statement  of  the  claim.  Until a notice,  valid  in  law, directing  that  a statement be filed was  served  upon  the mortgagee  and he failed to comply with it, the  debt  could

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not be discharged. [179 G-180 B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2373 of 1966. Appeal  from the judgment and order dated September 1964  of the  Bombay High Court Nagpur Bench in Special Civil  Appli- cation No. 471 of 1964. 178 C.B.  Agarwala, G., L. Sanghi, P. N. Kukde and A. G.  Ratna- parkhi, for the appellants Nos. 1, 2 and 4 to 6. R.   M.  Hazarnavis  and A. G.  Ratnaparkhi,  for  appellant No.3. S.   T. Desai, M. S. Gupta and S. K. Dhingra, for respondent No. 1. N. S. Bindraand S. P. Nayar, for respondents Nos. 2 and 3. The Judgment of the Court was delivered by Shah,  J.-Gendalal-hereinafter called  ’the  mortgage’-filed Suit  No. 11 of 1939 for recovery of the amount due under  a deed  of mortgage of proprietary rights in certain  villages executed  in  1929 by Prahlad-father of  the  appellant.   A preliminary  mortgage decree was passed declaring  that  Rs. 2,16,309/11/9 were due on the mortgage.  The decree was made absolute   for  sale.   The  mortgage  commenced   in   1948 proceedings for executing the decree.  On  March  31, 1951, the Madhya Pradesh Abolition  of  Pro- prietary Rights (Estates, Mahals, Alienated Lands) Act 1  of 1951 was brought into force.  By virtue of s. 3 of that  Act the  proprietary  rights  of  holders  of  estates,  mahals, alienated villages. and alienated lands stood vested in  the State.  Chapter IV of the Act provided for "determination of debts".  The mortgagor Prahlad applied on April 26, 1951  to the   Claims   Officer  under  S.  19  of   that   Act   for "determination  of  the debt" due to the mortgagee  and  for scaling  down  the debt.  The mortgagee contended  that  the debt  had, by adjudication of the Court, been merged into  a decree  and  there  was no "secured  debt"  which  could  be determined  or  scaled down.  The Claims Officer  held  that there was a debt due to the mortgagee, that it was a secured debt, and that he had jurisdiction to "determine the  debt". On  November  19,  1951  the  Claims  Officer  directed  the mortgagee to submit a statement of the claim under s. 22  of the Act. Against  the  order  of the Claims  Officer,  the  mortgagee appealed to the Board of Revenue.  Following the judgment of the  Nagpur  High Court in Ramkishan v.  Board  of  Revenue, Madhya Pradesh(1), the Board of Revenue set aside the  order holding  that  the  Claims Officer had  no  jurisdiction  to decide  the question Whether there was a secured  debt,  and that  the  Civil Court alone was competent  to  decide  that question. In  the  execution application filed by  the  mortgagee  the Additional District Judge held that there was a secured debt within  the meaning of s. 19 read with s. 17(1) of  the  Act due to the mortgagee under the mortgage, notwithstanding the decree passed by the Civil Court. (1)  I.L.R [1954] Nag. 430. 179 On  October  3, 1955, the High Court of Nagpur  in  Jethalal Bhawanji v. Prabhakar Sadashiv(1) overruled the Judgment  in Ramkrishna’s  case (2 ) , and held that the  Claims  Officer had  jurisdiction  to decide whether a debt  was  a  secured debt.   The  mortgagee  then filed on January  23,  1958,  a statement  of his claim.  On March 26, 1958, the  appellant-

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son  of  the original mortgagor Prahlad-contended  that  the debt  stood discharged because the mortgagee had  failed  to file  a  statement of his claim as ordered on  November  19, 1951  by  the Claims Officer.  By order dated  December  24, 1962  the  Claims  Officer  upheld  the  contention  of  the appellant.   Against that order the mortgagee  preferred  an appeal to the Commissioner, Nagpur Division.  At the hearing of the appeal, the appellant contended that the Commissioner had  no jurisdiction to hear the appeal.   The  Commissioner rejected  the contention of the appellant and set aside  the order of the Claims Officer discharging the debt. A  petition  moved by the appellant in the’  High  Court  of Bombay at Nagpur challenging the order passed by the Commis- sioner was summarily dismissed.  With certificate granted by the High Court, this appeal has been preferred. Counsel contended that the mortgagee failed to file a state- ment  of  account pursuant to the order dated  November  19, 1951  by the Claims Officer, and by virtue of s. 22  of  the Madhya  Pradesh  Abolition of Proprietary  Rights  (Estates, Mahals,  Alienated  Lands)  Act 1 of  1951  the  debt  stood discharged.   But  the order of the Claims  Officer  holding that there was a secured debt was set aside in appeal by the Board  of  Revenue.   Any proceeding  consequent  upon  that adjudication  was, in view of the judgment of the  Board  of Revenue,  unauthorised.   That  decision  of  the  Board  of Revenue  became  final between the parties.   It  cannot  be contended that because in another proceeding the High  Court of Nagpur expressed the view that the judgment on which  the Board of Revenue relied was erroneous, the direction of  the Claims Officer requiring the mortgagee to file his statement of account was revived, and if the directions of the  Claims Officer  word  not  complied  with,  the  debt  due  to  the mortgagee  was discharged.  The order of the Claims  Officer was  reversed  by the Board of Revenue, and  all  directions given  by the Claims Officer, pursuant to his order  calling upon  the mortgagee to file a statement of his claim,  stood annulled.   The  Nagpur High Court  in  Jethalal  Bhawanji’s case(1),  it  is true, decided that the Claims  Officer  was competent  under  s. 23 of M.P. Act 1 of 1951  to  determine whether  a debt is a secured debt.  But the first  order  of the Claims Officer was annulled by order of the Board of (1) I.L.R. [1956] Nag. 147. (2) I.L.R. (19541 Nag. 480. 180 Revenue  and thereafter that officer did not pass any  order under  s. 22 of Act 1 of 1951 directing that the  proceeding shall  continue, and further directing that a  notice  shall issue calling upon the mortgagee to file a statement of  the claim.   Until  a  notice, valid in law,  directing  that  a statement  be  filed  was served upon the  mortgage  and  he failed to comply with it, the debt could not be  discharged. Section   22  enacts  a  penal  provision  and  unless   the conditions  precedent are satisfied, the debt could  not  by operation of the statute be discharged). The  High Court was right in dismissing the  petition.   The appeal fails and is dismissed with costs. Y.P.                    Appeal dismissed 181