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PETITIONER: KRISHNA PRASAD AND OTHERS

       Vs.

RESPONDENT: GAURI KUMARI DEVI

DATE OF JUDGMENT: 05/03/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N.

CITATION:  1962 AIR 1464            1962 SCR  Supl. (3) 564  CITATOR INFO :  RF         1967 SC 801  (39)  F          1969 SC 971  (15,16)  D          1971 SC1678  (6,16)

ACT: Execution--Personal   decree  against   mortgagor--Mortgaged estate vesting in the State--Effect on claim  pending--Bihar Land Reforms Act, 1950(Act 30 of 1950), s. 4(d).

HEADNOTE: The appellant obtained a preliminary decree, on an anomalous mortgage  of  a share in the Zamindari village  of  Sonchari Mouza in the Patna District and khudkasht land  appertaining to  the  Mouza,  against the  mortgaged  properties  with  a direction  for a personal decree for the balance  and  there followed   a   final  mortgage  decree  on   30.9.1947.   An application  for execution against the mortgaged  properties was  dismissed on 9.1.1954 as in the meantime the  mortgaged properties which constituted an estate within the meaning of s.   2(1) of the Bihar Land Reforms Act, 1950, had vested in the  State. Execution  was  sought personally against the  mortgagor  by attachment  and sale of other, properties of  the  mortgagor and it was ultimately ordered by the executing court.  The  565 Patna High Court in revision held that in view of s. 4(d) of the  Bihar  Land Reforms Act, 1950, the  execution  petition could not proceed and dismissed it. On appeal to this Court it was contended that s. 4(d) of the Act prohibited execution only against the mortgaged property not  in respect of the personal decree.  It was  brought  to the notice or this Court that the appellant had preferred  a claim  tinder the Act and that the Claim Officer had  deter- mined  a sum of Rs. 58,100/- with interest at 4 per cent  as payable  to the appellant from the compensation  payable  on abolition of the Estate. Held, that s. 24(5) of the Act made the compensation payable on acquisition of the mortgaged estate a kind of substituted security against which the mortgage claim would be  enforced under the provisions of the Act.  According to the Scheme of the  Act  the  debts of the proprietors in  respect  of  the

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estate  were to be investigated and adjusted exclusively  by the  Tribunal tinder the Act.  On a proper construction,  s. 4(d) of the Act precluded the executing Court from enforcing the direction for a personal decree for realising the  mort- gage  debt at present ; it could only be done eventually  if the  realisation  from  the  mortgaged  property  was  found insufficient  to satisfy the decree, as in the present  case the  whole  of  the mortgaged property  was  an  estate,  in respect of which a claim was pending. Lion  Insurance Association Ltd. v. Tucker (1883) 12  Q.B.D. 176,  Raqhubir  v. Basudevanand, (1953) I.L.R 32  Pat.  581, Mahanth Sukhdeo Das v. Kashi Prasad Tiwari, A.I.R. 1958 Pat. 630  and Rana Sheo Ambar Singh v. The Allahabad  Bank  Ltd., (1962) 2 S.C.R. 441 referred to.

JUDGMENT: CIVIL,  APPELLATE  JURISDICTION : Civil Appeal  No.  352  of 1959. Appeal  from the judgment and decree dated January 8,  1957, of the Patna High Court in Civil Revision No. 590 of 1955. L.K. Jha and B. P. Jha, for the appellants. Sarjoo Prasad and R. C. Prasad, for the respondent. 1962.  March 5. The judgment of the Court delivered by 566 GAJENDRAGADKAR,  J.-This  appeal has been brought  to,  this Court with a certificate issued by the Patna High Court  and it  raises as short question about the scope and  effect  of the provisions of section 4(d) of the Bihar Land Reform Act, 1950  (30 of 1950) (hereinafter called the Act).   The  res- pondent Smt.  Gauri Kumari Devi along with her husband, Babu Shyamakant Lal, executed a regisbored anomalous mortgage  in favour  of the appellants Babu Krishna Prasad and his  three sons  on the 10th of July, 1937, for a sum of Rs.  35,000/-. The  document evidenced a combination of ’Sudharna’ as  well as simple mortagage and the period specified in it was  five years.   The respondent was the principal mortgagor  and  by the  mortgage deed she mortgaged 10 annas and 8 pies  Hakiat Milkiat of village Sonchari Mouza No. 11 912 in the district of Patna which was the Zamindari property and 16.41 acres of khudkasht  land  appertaining  to khata No. 3  of  the  said Mouza. The  appellants  sued  on  this  mortgage  to  recover   Rs. 69,816/51/17  in  the court of the SubJudge at  Patna.   The said  suit ended in a decree in favour of the appellants  on the 26th August,1946.  The trial Judge ordered that for  the satisfaction   of   the  decretal  amount,   "the   mortgage properties would be charged preliminary and if the  decretal amount  is  not fully satisfied from them,  then  alone  the respondent  would be personally liable for the  satisfaction of the balance, if any." That is how a composite decree came to  be  passed  in  the suit.  By  the  final  decree  which followed  on  the  30th  September,  1947,  the  respondents liability to pay Rs. 52,950/3/- was determined. The  appellants then filed an Execution Case No.  6  of’1952 and  that the decretal amount should be realised by sale  of the ’mortgaged Zamindari properties.  The respondent  raised an  objection  against the appellants’ claim on  the  ground that the mortgaged properties had in the 567 meanwhile vested in the State of Bihar under the  provisions of the Act and so, they were not liable to sale in execution proceedings  as  the  respondent  had  ceased  to  have  any interest  in them.  Ultimately, the Execution Case filed  by

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the appellants was dismissed on the 9th January, 1954. When  the  respondent contested the Execution  Case  on  the ground that the mortgaged properties had vested in the State of  Bihar,  the  appellants applied for  transfer  of  their decree for the execution to the Gaya Court.  They  intimated to the Court that they wanted to execute the decree  against the  respondent by. proceeding against or  properties  other than those which were the subject-matter of the mortgage and they  alleged that they were entitled so to do by reason  of the personal decree which had been passed against her.   The application  made  by  the appellants for  the  transfer  of decree  was  granted and the decree was transferred  on  the 22nd  of January, 1954 with a certificate  of  non-satisfac- tion. The  appellants then filed Execution Case No. 19 of 1954  in the  Court  of the Subordinate Judge at Gaya and  sought  to recover the decretal amount by attachment and sale of  other properties   belonging   to  the   respondent.    In   these proceedings, the respondent filed an objection under section 47  of  Code and it was numbered as Misc.  Case  No.  96  of 1954.   She  urged that the appellants had  not  obtained  a personal decree against her and so., the claim made by  them in  their  Execution Case was not  maintainable.   She  also contended that the appellants could not proceed against  her other  properties  because their remedy was  to  follow  the compensation  money  which  would  be  given  by  the  State of .Bihar to her in lieu of her properties which had  vested in the said State. It appears that on the 23rd December, 1954, the Misc.   Case No. 96 of 1954 filed by the respondent was allowed  ex-parte by the Sub-Judge at Gayna 568 and, in consequence, the Execution Case No. 19 of 1954 filed by  the  appellants  was  dismissed.   The  appellants  then applied  for review of the said order and prayed that  their Execution  Case  should be restorer to file  and  should  be dealt with in accordance with law.  On the 20th April, 1915, the Executing Court allowed the appellants’ application  for review and held that the appellants had obtained a  personal decree  against the respondent and that they had a right  to sell the other properties of the respondent in execution  of the  said personal decree.  That is how the Executing  Court directed that execution should proceed as prayed for by  the appellants. The  respondent challenged this order by preferring a  Civil Revision Application before the Patna High Court and it  was numbered  as  590  of  1955.  The High  Court  held  that  a personal decree had been passed in favour of the appellants, though that part of the direction given in the judgment  had not  been  formally incorporated in the  decree.   The  High Court  therefore, rejected the respondent’s contention  that no personal decree had been passed since an application  had not been made by the appellants under Order 34 Rule 6 of the C.P.C.  The High Court also rejected the respondent’s  argu- ment that a Review Application did not lie against the first order passed by the Executing Court, though it thought  that there  was some substance in ’the contention raised  by  the respondent  that,  on the merits, the review need  not  have been  granted.   Even so, the High Court did not  choose  to base  its decision on this contention.  It has  allowed  the Revision Application on the merits because it has held  that the appellants have no right to execute the personal  decree by   proceeding  to  sell  the  other  properties   of   the respondent,  for section 4(d) of the Act constitutes  a  bar against  such  proceedings.  on this view,  the  High  Court

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allowed the Revision Application, set aside the order passed by the Executing  569 Court  in favour of the appellants and has ordered that  the Execution  Application  filed by the  appellants  should  be dismissed.   The appellants then applied for and obtained  a certificate  from  the High Court and it is  with  the  said certificate  that they have come to this Court; and so,  the point  which falls to be decided is in regard to  the  scope and  effect  of section. 4(d) of the Act.  We ought  to  add that  the respondent’s objection against the  competence  of the appellants’ application for review has not been  pressed before us. Before  dealing with the said point, it would be  convenient to  state some material facts.  The first material  fact  is that  all  the  properties mortgaged by  the  respondent  in favour of the appellants constitute an estate under  section 2(1)  of the Act, so that we are dealing with a  case  where the  entire  mortgaged property belonging to  the  mortgagor proprietor  has vested in the State of Bihar.  It is  not  a case  where part of the properties mortgaged has  vested  in the  State while some of them continue to be vested  in  the mortgagor. The  second point which has to be borne in mind  in  dealing with the present controversy is that the appellants seek  to execute  the personal decree against the respondent.   There is  no doubt that under 0. 34 R. 6 of the Code,  a  personal decree can be passed on an application made by the mortgagee decree-holder  only where the net proceeds of any sale  held under  0.34  R. 5 are found to be insufficient  to  pay  the amount due to the decree-holder, that is to say, it is  only after  the mortgagee decree-bolder has exhausted his  remedy against the mortgaged property that he is entitled to  apply to  recover the balance from the  mortgagor  judgment-debtor personally  otherwise than out of the properties  mortgaged. It may be that in the 570 case  of a composite decree, an application as  contemplated by  0.  34  R.  6,  may not  be  necessary  ;  but  in  that connection,  it may be relevant to bear in mind  that  under the  normal procedure prescribed by 0. 34 R.6,  recovery  of the  balance  due under a mortgage decree is ordered  on  an application by the mortgagee decree-holder where it is shown that  the net proceeds of any sale held under  the  mortgage decree  are  insufficient to pay the amount  due  under  the decree.  Besides, the order passed by the trial Court in its judgment which has been treated in substance to constitute a personal  decree  in  the  present  proceedings,  makes  the position  quite clear.  The learned Judge directed that  for the  ’satisfaction  of the decretal ’amount,  the  mortgaged properties would be charged preliminary and he added that if the  decretal amount is not fully satisfied from them,  then the  appellants  would be entitled to  proceed  against  the respondent  personally.  In other words, the decree  clearly and  unambiguously  provides that the  appellants  would  be justified  in  executing  the personal  decree  against  the respondent  only  if  and after they  have  exhausted  their remedy  against the mortgaged properties and have  not  been able  to  recover the whole of the decretal amount  by  that process.   That is the second material fact which-has to  be borne in mind. Then the third fact to which reference must be made is  that after  the  prescribed  notification  was  issued  and   the mortgaged properties belonging to the respondent had  vested in the State of Bihar, the appellants applied under  section

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14  of  the  Act notifying their claim  under  the  mortgage decree  to  the Claims Officer, and, in fact,  on  the  24th November, 1956, the Claims Officer has determined that a sum of  Rs. 58,100/- plus future interest at 4% per  annum  over the principal amount only but limited to the total  interest not exceeding the amount of the principal, would be  payable to the 571 appellants  out  of the compensation amount payable  to  the respondent  in  respect of the properties  mortgaged.   This fact  was not known to the respondent at the time  when  her Revision  Application  was  argued before  the  High  Court, because it appears that the respondent did not appear in the proceedings  before the Claims Officer.  The said fact  has, however,  been  stated  before us by the  respondent  on  an affidavit  and  its  correctness  is  not  disputed  by  the appellants.  It is in the light of these facts that we  have to  decide whether the High Court was right in holding  that the  appellants’  application for execution at  the  present stage  is incompetent in view of the provisions  of  section 4(d) of the Act. Let us then briefly refer to the relevant provisions of  the Act  which  would  enable us to construe  section  4(d)  and determine  its scope and effect.  As is well-known, the  Act was passed to provide for the transference to, the State  of the interests of proprietors and tenure- holders in land and of  the  mortgages  and lessees of  such  interests  and  to provide  for the constitution of a Land Commission  for  the State of Bihar with powers to advise the State Government on the  agrarian  policy to be pursued by the  said  Government consequent  upon  such transference and  for  other  matters connected  therewith.  The object of the Act which  is  writ large on its provisions was to eliminate the  intermediaries and  establish  direct relation between the  State  and  the cultivators.   This policy has subsequently been adapted  in many  other States in order to bring about the  much  needed agrarian  reform, Section 2(1) defines  estate" meaning  any land  included  under  one  entry  in  any  of  the  general registers of revenue-paying lands and revenue-free  prepared and  maintained under the law for the Lime being in  forever by  the  Collector of a district and  includes  revenue-free land not entered in any 572 register  and  a  share in or of an estate.   It  is  common ground  that  the  mortgaged properties with  which  we  are concerned in the present appeal are an estate under  section 2(i).  Similarly, it is common ground that the respondent is a proprietor as defined in s. 2 (o).  Section 3 enables  the State  Government  to  declare from time to  time  by  noti- fication  that  the estates or tenures of  a  proprietor  or tenure-holder, specified in the notification, have passed to and   become   vested  in  the  State.    The   notification contemplated  by s. 3 (1) has been issued in respect of  the estate  in question.  Section 4 prescribes the  consequences of  vesting  of an estate or tenure in the  State.   Broadly stated,  the effect of s. 4(a) is that an estate in  respect of  which a notification has been issued shall, with  effect from  the date of vesting vest absolutely in the State  free from all encumbrances and the proprietor of the said  estate shall cease to have any interests in such estate, other than the  interest expressly saved by or under the provisions  of the Act.  That takes us to section 4(d) which provides  that no  suit shall lie in any Civil Court for the  recovery  of. any  money  due from such proprietor  or  tenure-holder  the payment of which is secured by a mortgage of, or is a charge

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on, such estate or tenure and all suits and proceedings  for the  recovery of any such money which may be pending on  the date  of vesting shall be dropped.  It is conceded  that  s. 4(d) takes in cases where decrees have been passed and  that the  word  "proceedings" used in its latter  portion  covers execution  proceedings.  It is, however, urged that the  bar created  by a. 4 (d) applies only to  execution  proceedings which  are  taken by mortgagees  decree-holders  to  recover their decretal amount from estates which have vested in  the State and that execution proceedings in which decree-holders seek  to recover their decretal dues from  properties  other than  those which have vested in the State are  outside  the mischief 573 of  s.  4 (d).  In other words, Mr. Jha for  the  appellants contends  that the High Court was in error in  adopting  the broad and literal construction of section 4(d). Before we deal with this argument, it would be convenient to refer  to the other relevant sections of the  Act.   Section 14(1)  prescribes the time within which a  secured  creditor has  to  file  his claims.  Every creditor,  whose  debt  is secured  by  a  mortgage  of  an  estate,  has,  within  the prescribed  time,  to notify in the  prescribed  manner  his claim  in  writing to the Claims Officer appointed  in  that behalf.   It  is  the  function of  the  Claims  Officer  to determine the amount of debt legally ’and justly payable  to each  creditor in respect of his claim.  Thus, it  is  clear that  a  mortgagee  decree-holder has to  apply  within  the specified time before the Claims Officer and that the Claims Officer  would have to determine what is legally and  justly due  to  him.   Section 14(3) makes it  clear  that  if  the mortgagee  decree-holaer  fails  to  notify  his  claim   as required  by  s.  14(1), the said  claim  shall  be  barred, subject to the proviso which it is unnecessary to  consider. The  effect of section 14(3), therefore, is that if a  claim of  the  nature referred to in subsection (1)  is  not  duly notified  to the Claims Officer within the time and  in  the manner  prescribed by the said sub-section, the  said  claim would  be  barred.   The  penalty  for  non-compliance  with section  14(1)  is  thus clear.   Section  15  requires  the creditor  to  furnish  full  particulars  and  documents  in support  of  his claim.  Section 16(1) lays  down  that  the Claims  Officer shall determine the principal amount  justly due  to each creditor and interest due at the date  of  such determination  in  respect of such  principal  amount,  ’the determination  to be made in accordance with the rules  made under  the Act.  Section 16(2) prescribes a scheme  for  the scaling  down  of  the debts  due  by  the  judgment-debtor. Clauses (b) and (d) of section 16(2) 574 clearly  suggest that the policy of the Act, inter alia,  is to  give  relief  to  the  debtors  whose  estates  have  by operation  of  the  law vested in  the  State.   Section  17 provides  for an appeal against the decision of  the  Claims Officer  to  a  Board whose constitution  is  prescribed  by section 18(1).  Section 18(3) lays down that the decision of the  Board  and, where no appeal has been preferred  to  the Board,  the decision of the Claims Officer shall  be  final. So,  the scheme of Chapter IV which consists of sections  14 to 18 clearly is that all claims based on mortgages relating to  estates have to be submitted to the Claims  Officer  and the  amounts due to the creditors have to be  determined  in accordance with the principles laid down by the Act.   Where the whole of the property mortgaged is an estate, there  can be no doubt that the procedure prescribed by Chapter IV  has

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to be followed in order that the amount due to the  creditor should be determined by the Claims Officer.  The decision of the  Claims Officer or the Board has been made final by  the Act. Chapter  V  deals  with the problem  of  the  assessment  of compensation.    Section  24  provides  for  the  rates   of compensation.  Section 24(5) lays down, inter alia, that  in the case where the interest of a proprietor is subject to  a mortgage, or charge, the compensation shall first be payable to  the  creditor holding such mortgage or  charge  and  the balance’  if  any, shall be payable to the  proprietor.   It adds  that the amount of compensation payable to a  creditor shall  be  the  amount determined under  Chapter  IV  which, notwithstanding  anything contained in any law for the  time being  in force, shall not in any case exceed the amount  of compensation  payable  in respect of the estate  or  portion thereof  which is subject to such mortgage, and where  there are  two or more such creditors, the compensation  shall  be payable to  575 them  in the order determined under the said Chapter.   This provision is, in a sense, consequential and it provides  for the  payment of the amount already determined to  be  justly and  legally  due to the creditor and so, a claim  which  is made  under section 14 would be determined under section  16 and the amount so determined will be paid under a. 24(5). Chapter  VI  deals  with the payment  of  compensation,  and section  32 provides for the manner of its  payment.   Thus, the scheme of Chapters IV, V & VI is clear.  The  provisions in  the  said Chapters constitute an  integrated  and  self- sufficient  Code for the determination of the amount due  to the  creditors  in question and for their payments,  and  s. section 35 which occurs in Chapter VIII prescribes a bar  to the jurisdiction of Civil Courts in the matters included  in it.   Under this section, ’no suit shall be brought  in  any Civil  Court in respect of any entry in or omission  from  a Compensation  Assessment  Roll or in respect  of  any  order passed  under  Chapters II to VI or  concerning  any  matter which is or has already been the subject of any  application made  or proceedings taken under the said  Chapters.   There can,  therefore,  be  no doubt that the scheme  of  the  Act postulates  that  where  the provisions of  the  Act  apply, claims  of creditors have to be submitted before the  Claims Officer,   the  claimants  have  to  follow  the   procedure prescribed by the Act and cannot avail of any remedy outside the  Act by instituting a suit or any other  proceedings  in the court of ordinary civil jurisdiction. It  is in the light of this scheme of the Act that  we  must revert  to section" 4(b) and determine what its  true  scope and  effect  are.  Mr. Jha contends that in  construing  the words of Section 4(d) it would be necessary to bear in  mind the  object of the Act which was merely to provide  for  the transference to 576 the  State of the interests of the proprietors  and  tenure- holders  in land and of the mortgagees and lessees  of  such interests.  It was not the object of the Act, says Mr.  Jha, to extinguish debts due by the proprietors or tenure holders and  so, it would be reasonable to confine the operation  of is.  4(d) only to the claims made against the estates  which have  vested in the State and, no others.  In  our  opinion, this  argument proceeds on an imperfect view of the aim  and object  of the Act.  It is true that one of the  objects  of the Act was to provide for the transference to the State  of the estates as specified.  But as we, have already seen, the

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provisions contained in section 16 in regard to the  scaling down of the debts due by the proprietors and  tenure-holders clearly indicate that another object which the Act wanted to achieve  was  to  give some redress  to  the  debtors  whose estates have been taken away from them by the  notifications issued under section 3. Therefore, in construing s. 4(d), it would  not  be  right to assume that the  interests  of  the debtors  affected by the provisions of the Act do  not  fall within  the protection of the Act.  Mr. Jha fairly  conceded that  if the words used in a. 4(d) are  literally  construed and  they  are given their natural grammatical  meaning,  it would  not  be  easy to limit the operation of  s.  4(d)  to execution  proceedings where relief is claimed  against  the properties  which  have vested in the State.   The  relevant clause   in  section  4(d)  provides  that  all  suits   and proceedings for the recovery of any such money which may  be pending  on  the date of the vesting shall be  dropped;  and these  words are wide enough to include within  their  sweep execution  proceedings,  even  though the  recovery  of  the amount  due may have been claimed by the decree-holder  from properties other than those which have vested in the  State. The only limitation imposed by the clause is that the execu- tion  proceedings  should be for the recovery  of  any  such money meaning any money due from the  577 proprietor on the strength of a mortgage executed by him  in respect  of an estate.  We have already emphasized  that  in the present case, the whole of the mortgaged property is  an estate and, therefore, it is unnecessary for us to  consider what  would  be the effect of the provisions of s.  4(d)  in cases where part of the mortgaged property is an estate  and part is not.  It is alsounnecessary  to  consider   whether s.4(d) would create abar   even  in  cases   where   the compensation amount payable to the mortgagor is insufficient to satisfy the mortgagee decree- holder’s claim even to  the extent of the amounts scaled down under section 16. Mr. Jha, however, suggested that rules of grammer should not be allowed to have an overriding effect if it is shown  that putting  a  literal  and  grammatical  construction  on  the relevant  words  would  lead to  unreasonable  or  anomalous results and in support of this argument, he has invited  our attention  to the observations made by Brett, M. R.  in  the case  of the Lion Insurance Association Ltd.  v.  Tucker.(1) "When you construe a statute or document" observed Brett, M. R., "you do not construe it, according to the mere  ordinary general meaning of the words, but according to the  ordinary meaning  of the words as applied to the subject-matter  with regard  to  which they are used, unless there  is  something what obliges you to read them in a sense which is not  their ordinary  sense  in  the English. language  as  so  applied. That.,  I take it, is the cardinal rule." We do not see  how this principle can assist Mr. Jha in the present case.   The scheme  of  the relevant provisions of the Act to  which  we have already referred unambiguously suggests that where  the whole  of  the  mortgaged property  is  an  estate,  certain consequences follow.  The decree-holder has to make a claim; the claim has to be inquired into by the Claims Officer; the amount  due to the decreeholder has to be determined by  the Claims Officer (1)  (1883) 12 Q.B.D. 176, 186. 578 and  the amount so determined has to be paid to the  decree- holder  from  out of the compensation money payable  to  the judgment-debtor.   Having regard to the said scheme,  it  is difficult  to  confine the application of s.  4(d)  only  to

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execution  proceedings in which the decree-holder  seeks  to proceed  against  the  estate of the debtor.   In  fact,  an execution proceeding to recover the decretal amount from the estate  which  has  already vested in the  State,  would  be incompetent because the said estate no longer belong to  the judgment-debtor.   That being so, we are satisfied  that  on the facts of this case, the High Court was fight in  holding that  the application made by the appellants to execute  the decree against the respondent by proceeding against her non- mortgaged  properties is incompetent at the  present  stage. The  amount  due  to  the appellants  under  the  decree  in question  has been already determined by the Claims  Officer and the appellants must first seek to recover that amount as provided  by the relevant provisions of the Act before  they proceed to execute the personal decree. This  conclusion  follows even on the terms  of  the  decree itself.   We have already seen that the direction issued  by the  trial Court is explicit and clear.  The said  direction which is consistent with the provisions of 0. 34 B. 6  would enable  the  appellants to proceed  personally  against  the respondent  only if it is shown that the decretal amount  is not  fully  satisfied  from the proceeds  of  the  mortgaged property.   In  the  present case,  the  mortgaged  property cannot  be sold because it has vested in the State  free  of encumbrance;  but  in lieu of the  mortgaged  property,  the respondent  has  become  entitled  to  certain  compensation amount  and the appellants are given the statutory right  to receive  the amount due to them from the  said  compensation amount  under section 2 4 (5).  This provision is some  what similar to the provision of section 73(2) of the  579 Transfer  of  Property Act which provides, inter  alia  that where  the  mortgaged property is acquired  under  the  Land Acquisition  Act, or any other enactment for the time  being in  force  providing  for  the  compulsory  acquisition   of immoveable  property,  the mortgagee shall  be  entitled  to claim  payment of the mortgage-money, in whole or  in  part, out of the amount due to the mortgagor as compensation.   In a  sense, the compensation amount payable to the  respondent may   prima  facie,  be  treated  to  be  like  a   security substituted in the place of the original’ mortgaged property under  section  73(2)  of  the  Transfer  of  Property  Act. However  that may be, the terms of the decree  require  that the  appellants must first seek their remedy from  the  said compensation amount before they can proceed against the non- mortgaged   property  of  the  respondent.    The   relevant directions  in  the decree do not  justify  the  appellants’ contention that because the mortgaged property has vested in the State, they are entitled to execute the personal  decree without  taking  recourse to the remedy  available  to  them under section 24(5) of the Act. It now remains to refer to some decisions of the Patna  High Court to which our attention was drawn during the hearing of this appeal.  In Raghubir v. Budevanand, (1) the High  Court has held that section 4(d) of the Act is not applicable to a case  where  money  is secured by a mortgage  or  charge  on estates,  some of which are notified under section 3 of  the Act  and  the  others are not notified.   In  such  a  case, according  to the High Court a. 4 (d) will be a bar  to  the suit  or execution proceedings so far as the vested  estates are  concerned,  but  the  creditor  will  be  entitled   to prosecute  the suit or execution proceedings as regards  the estates  or portions of estates which are not vested in  the State.  Since we are dealing with a case where the whole  of the mortgaged property is an estate, it

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(1)  (1953) I.L.R. 32, 581. 580 is unnecessary for us to consider whether the view taken  by the Patna High Court in this cue is correct or not. In  Mahanth Sukhdeo Das v. Kashi Prasad Tiwari (1) the  full Bench  of the High Court had occasion to consider whether  a mortgagee  decreeholder  of the interest of  the  proprietor whose estate has vested in the State, is entitled to proceed against the Bakasht lands of the proprietor comprised in the said estate for recovery of the amount due to him under  the mortgage  decree, and it was held that in such a  case,  the mortgagee can not be forced to seek his remedy under section 14 and to satisfy his mortgage debt out of the  compensation payable  under the Act, It appears that the Full  Bench  was inclined to take the view that the interest of the judgment- debtor in the bakasht land was one of the interests saved by section 6 and that, in consequence, the bakasht lands conti- nued to remain in the possession of the ex-propriotor not in the  character  of bakasht lands but as raiyati  lands;  and since  these lands were a part (if the security  offered  by the mortgage-deed, the decree-holder was entitled to proceed against  them without taking his remedy under section 14  of the,  Act.  This conclusion was based on the view  that  the effect of a. 4(d) read with sections 3 and 6 of the Act  was not  to destroy the mortgage in its entirely but  only  with respect  to  that  part  of  the  estate  which  had  vested absolutely in the State and no interest therein is left with the  mortgagor proprietor or tenure-holder.  It is  conceded by  Mr. Jha that this decision also proceeds on the  assump- tion that the mortgage security consists of an estate  which has vested in the State and of bakasht lands which did  not, in  substance,  vest  in the State but  continued  with  the mortgagor as raiyati lands.  Therefore, it is not  necessary for us to examine the merits if the conclusion reached by (1)  A.I.R. 1958, Pat. 630. 581 the Fall Bench in this case.  It may, however, be not out of place  to  add incidentally that Mr. Sarjoo Prasad  for  the respondent  has  suggested that the assumption made  by  the Fall  Bench  about  the character of the  bakasht  lands  by virtue  of the provisions of section 6 is inconsistent  with the decisions of this Court in Rana Sheo Ambar Singh v.  The Allahabad   Bank  Ltd.  (1).   His  argument  is  that   the provisions  of  section  6  of the  Act  correspond  to  the provisions  of section 18 of the U. P.  Zamindari  Abolition and  Land Reforms Act (1 of 1951), and that what this  Court has  said about the effect of the provisions of section  18, has shaken the validity of the conclusion of the Full  Bench in regard to the effect of section 6 of the Act.  We, do not think  it  necessary to consider this point as well  in  the present  appeal.  In any case, both the decisions  on  which Mr.  Jha  has relied afford no assistance to us  in  dealing with  the point with which we are concerned in  the  present appeal. The  result  is,  the order passed by  the  High  Court  if; confirmed and the appeal is dismissed with costs. Appeal dismissed (1)[1962] 2. S.C.R. 44 1. 582