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Subba Rao, C.J.—S. T. A. Nos. 9 and 10 of 1954: These two appeals arise out of the orders of the Court of the Estates Abolition Tribunal, Vizianagaram, in O. Ts. Nos. 127 and .128 of 1953.
The facts may be briefly staled. Siripuram -estate in Srikakulam District was notified under the Madras Estates (Abolition and Conversion into" Ryotwari) Act, 1948 (hereinafter referred to as the Act). Subsequent to the coming into force of the Act, the .Appellant filed O. S. No. 36 of 1950 on the file of the Court of the Subordinate Judge, Srikakulam, to enforce a mortgage executed by the holder of the Sripuram Estate, in his favour in 1933 and obtained .ii decree for recovery of a sum of Ks. 2,15,000. As by that time the estate vested in the Government, the decree ran as follows:
The Court doth order and decree that the Plaintiff do recover from out of the compensation amount in the hands of the Estates Abolition Tribunal and out of the other assets of the deceased husband of the 1st Defendant in the hands of the 1st Defendant with a charge on the compensation amount, the sum of Rs. 2,15,000 with interest thereon at the rate of 9 per cent, per annum from 5-4-1950 (date of plaint) fill the date of realisation of the said sum.
Subsequently, the Government deposited with the Tribunal the advance compensation duo to the landholder. The Appellant filed O. P. No. 38 of 1952 and drew an amount of Rs. 1,00,725. The Government also deposited Rs. 1,398-2-6 and Rs. 4,693-9-8 towards interim payments for falsies 1360 and 1381 respectively. The Appellant filed O. Ps. Nos. .127 and 128 of 1953 before the Tribunal for recovering the said amounts towards his decree. The Tribunal dismissed those two applications on the ground that, under the decree, the Appellant was entitled to a -charge only on the compensation amounts and that interim payments not being compensation amounts he was not entitled to recover the same under the terms of the decrce. The Appellant filed the aforesaid two appeals against the orders of the Tribunal.
Learned Counsel for the Appellant contends that, under the provisions of the Act, interim payments form part of the compensation, and, therefore the Tribunal went wrong in dismissing his petitions. To appreciate his contentions, it is necessary to read the relevant provisions of the Act:
Section 3: With effect on and from the notified date and save as otherwise expressly provided in this Act;
(b) the entire estate shall stand transfer-Ted to the Government and vest in them ......
(c) All rights and interests created in or over the .estate before the notified date by the principal or .any other land-holder, shall as against the Government cease and determine.
(e) the principal or any other land-holder and -any other person whose rights stand transferred under Clause (b) or cease and determine under Clause (c) shall be entitled only to compensation from the Govern-anent as provided in this Act;
Section 41 (1) The Government shall deposit in the Office of the Tribunal, the compensation in respect of each estate as fuially determined u/s 39, in such form and manner and at such time or times and in one or more installments, as may be prescribed by rules made u/s 40.
Section 42:(1) Every person claiming the compensation so deposited or any portion thereof, including the principal or any other land-holder, members of his family claiming any portion of such compensation, whether by way of a share or by way of maintenance or otherwise and creditors whether their debts secured or not, shall apply to the Tribunal within six months from the date on which the amount was so deposited or within such further time as the Tribunal may, in its discretion, allow.
(2). Every claim against the compensation which is not made to the Tribunal within the time afore�said shall cease to be enforceable.
Section 44: (1). As a preliminary to such deter�mination, among the principal land-holder and any other persons whose rights or interests in the estate stand transferred to the Government under S. 3, cl. (b) or cease and determine u/s 3 Clause (c) includ�ing persons who are entitled to be maintained from the estate and its income, as far as possible, in ac�cordance with the value of their respective interests in the estate.
Section 45: (3). The Tribunal shall next deter�mine which creditors, if any, are lawfully entitled to have their debts paid from and out of the assets of the impartibly estate and the amount to which each of them is so entitled; and only the remainder of the aggregate compensation shall be divisible among the sharers and maintenance-holders as hereinafter pro�vided.
Section 46: After the compensation has been apportioned among the persons referred to in Section 44, sub-s. (1) or where it is more convenient so to do pending such apportionment, the Tribunal shall take into consideration the applications of the creditors other than those dealt with in Section 45, Sub-secxtion (3) and decide the amount to which each such creditor is entitled and the person, or persons out of whose share or shares of. the compensation such amount should be paid.
Section 50: (2). After the notified date and be�fore the compensation has been finally determined and paid in pursuance of this Act, interim payments shall be made by the Government every fasli year to the principal land-holder and to the other persons referred to in sub-section (1).
(7) After compensation has been finally deter�mined and apportioned among the persons referred to in Sub-section (3), all interim payments made under this section to each of them shall be adjusted on the basis that together they are entitled, in respect of each of the fasli years to the basic annual sum as filially de�termined and that each of them separately is entitled to the same share of the basic annual sum as the share of the compensation to which he is finally held to be entitled u/s 44.
(8) No interim payments made under this section shall be deemed to constitute any part of the compensation which the Government are liable to deposit u/s 41, sub-section (1) or to any extent to be in lieu of such compensation.
Section 53: All payments made out of the compensation deposited in the Office of the Tribunal u/s 41 shall be made by it in accordance with its orders and decisions, subject to the modifications if any, made on appeal u/s 51.
Section 54-A: (1). In the case of. every estate not governed by Section 38, the Government shall estimate roughly the amount of the compensation payable in respect of the estate and deposit one half of that amount within six months from the notified date in the Office of the Tribunal, as advance payment 4on account of compensation.
Section 55: (1). After the notified date the landholder shall not be entitled to collect any rent which. accrued due to him from any ryot.
Section 58A: (1). No Court shall before the date on which the deposit in pursuance of Section 54A is made, order or continue execution in respect of any other land-holder of an estate, against his interest in the estate or against his other immovable property or against him personally........''''
Section 59: (1). No claim or liability enforceable immediately before the notified date against the principal or any other land-holder of an estate or against any other person whose rights stand transferred to the Government in pursuance of Section 3, Clause (b) shall on or after that date, be enforceable against the interest he had in the estate; and all such claims and liabilities shall after the date on which the deposit in pursuance of Section 54A is made be enforceable,
(a), against the interim payments or the compensation or other sums paid or payable- to him under this Act, to the same extent to which such claims and liabilities were enforceable against his interest in the estate immediately before the notified date; and
(b) against his other properly, if any, to the same extent to which such claims and liabilities were enforceable against such property immediately before the notified date.
(2) No Court shall, on or after the notified date order or continue execution in respect of any decree or order passed against the principal or any other land-holder or any other person aforesaid, against the interest he had in the estate; and execution shall be ordered or continued in such cases in conformity with the provisions of Sub-section Clause only as against the interim payments or again the compensation or other sum or sums paid or payable to him as aforesaid, or against his other property, it any.
The aforesaid provisions contain a scheme for the notification of an estate, for the deposit of amounts towards advance payments and interim payments, for the final payment and adjustment of accounts and for protecting the land-holder against harassment by creditors till the advance payments are made. An outline of the said scheme may be stated thus: On the Government notifying an estate under the Act, the entire estate shall stand transferred to the Government. All rights and interests created in or over the estate shall cease and determine. Thereafter, the principal or any other land-holder and any other person, whose rights stand transferred under Clause (b) or cease and determine under Clause (c), shall be entitled only to compensation. On the Government depositing the compensation in the Office of the Tribunal, (he principal land-holder, any other land-holder members of his family claiming (August) 1957 Andh. Pra. D.P. 14 any portion of it including maintenance-holders and creditors shall apply for a share in the compensation within six months from the date of such deposit. If no claim is made within the time prescribed, their claims cease to be enforceable thereafter. Presumably to avoid unnecessary hardship to the land-holders, the Government is authorised to deposit as advance payments roughly half the total compensation. So too, u/s 50 (2) Government pays amounts towards interim payments.
The Tribunal is authorised u/s 50 (5), after such enquiry (if any) as it thinks fit, to apportion the said amount among the principal land-holder and the other persons referred to in Sub-section (2) as far as possible in accordance with the value of their respective interests. The said payments represent the estimated yearly income from the estate, which will finally be adjusted u/s 50 (7) of the Act. Section 50 (8), in express terms, says that no such interim payment shall be deemed to constitute any part of the Compensation, which the Government are liable to deposit u/s 41 (1) or to any extent to be in lieu of such compensation.
Nor is there any provision corresponding to Section 42 (2) providing that, the claim to interim payments would become unenforceable if not made to the Tribunal within a specified time.
So far as the deposit of compensation is concerned, the Tribunal is authorised to distribute the same in the manner prescribed by Section 44, 45 and 46 between the land-holders, maintenance-holders, sharers and creditors. While in the case of interim payments, the Tribunal is empowered only to distribute the same between the persons described in Section 44 (1) of the Act, namely, land-holders and any other persons, whose rights or interests in the estate stand transferred to the Government u/s 3(b) or cease and determine u/s 3 (c) and maintenance-holders, it does not authorise the Tribunal to pay any part of that amount to simple money creditOrs.
Under Section 59 (1), no claim or liability enforceable immediately before the notified date against the principal or any other land-holder of an estate shall be enforceable against the interest he had in the estate and it; shall be enforceable thereafter only against the. interim payments or compensation or other sums paid or payable to him under the Act or against his other property to the same extent to which such claims and liabilities were enforceable against his interest in the estate immediately before the notified date.
Clause (S) deals with execution and prohibits-execution on or after the said date against his interest in the estate and enables execution to be taken out or continued only against the interim payments or compensation or any other sum or sums paid or payable to him or even against his other property if any. Section 59 (1) (a) and (b) only prescribe that no claim against compensation after the said date can be enforced against the estate but it can only be enforced after a particular time against the compensation or interim payments or other property of the land-holder. This section must be read as part of the scheme of distribution of the compensation and interim payments provided by the Act.
There is no provision in the Act expressly barring the maintainability 4)� suits for enforcing claims or liabilities against the land-holders. Section 59, on the other hand, clearly indicates that the said claim or liability is enforceable after a particular date against the compensation or interim payments or other sums paid under the Act or against any other property of the land-holder. A suit, therefore, can be filed under this section for enforcing the claim or liability against the land-holder. u/s 59 (2), decrees or orders can be executed against interim payments, compensation, or other property. But, by'' reason of Section 42 (2), no claim against compensation at the instance of persons mentioned in Section 42 (1) can be enforced unless it is made before the Tribunal within a particular time.
A combined reading of these provisions leads us to the conclusion that, in the case of. claims by persons mentioned in Section 42 (I), whether their claims fructified into decrees or not, they can only be realised from and out of the compensation, it only the claims are made in the manner rnescribod by that section. But, there is no similar provision in the case of interim payments and, then-lore, there is no prohibition by necessary implication, as in the other case, from recovering the amount in execution of the decree or order as the case may be, even in the case of persons described in Section 44 (1)though, in their case, the Tribunal is authorised to pay the amounts the manner provided by Section 50 (5) of the Act. But, in tire case of persons not covered by Section 44 (1), the Tribunal is not authorised to pay the amount and, therefore, such person can recover the amount due to him from the land-holder or sharer only by executing his decree in the manner provided by the Code of Civil Procedure.
The Appellant in S. T. No. 9 of 1954 is a person whose interests were determined u/s 3 (c) of the Act. If, .so, the Tribunal is bound to apportion the amounts deposited Inwards interim payments and pay the amounts apportioned to him under that clause. His claim threescore, was maintainable and must be decided by the Tribunal on its merits.
In the result, the appeals are allowed with costs in S. T. A. No. 9 of 1954.
C. M. A. No. 371 of 1954: We have already considered the scope of the provisions of the Act in the connected appeals. We held that the deposit made towards interim payments is not compensation and that it is liable to be distributed only in the manner prescribed by Section 50 (5) of the Act among the persons mentioned therein. But, in this case, though the Appellant may be considered to be a person whose interests have ceased within the meaning of Section 3 (c), he did not prefer any claim under that section but has chosen to execute his decree against the amount so deposited. Learned Counsel, for the Respondent contends that the decree was only a decree for sale of the plaint schedule property attached to the decree and, therefore, it was not executable against interim payments.
The decree was obtained by the Appellant in a suit filed by him to recover Rs. 18,527-8-0 from the Defendant or by the sale of the village Dharmapuram in Cheepurupalli Taluk. Though the suit was described as one filed for recovery of the amount not only by sale of the village but also from the Defendant, in the decretal portion of the decree, it was only ordered that the Plaintiff should recover it from the sale of the plaint schedule property. Subsequently, the Appellant filed Execution Application No. 124 of 1951 for realising the decree amount not only from the properties charged but also from the other properties of the judgment-debtor on the basis that the decree was not only a charge decree but it also imposed a personal liability.
The judgment-debtor filed a counter opposing this application but the Court made an order dated 8-12-1952 directing execution, against the charged properties and the other properties of the judgment-'' debtor. The order, therefore, clearly decides that the decree was executable not only against the charged properties but also against the other properties of the judgment-debtor. The present application is a subsequent application in execution of the same decree and the Defendant is precluded from questioning the excitability of the decree against his other assets by res judicata.
But. Mr. Ramanarasu contends that this point based upon the order in E. P. No. 124 of 1951 was not raised before the learned Judge and that the Appellant only relied upon the decision in E. P. No. 86 of 1953. It is true that, in para 38 of the judgment, the learned Judge dealt with the argument of the decree-holder only on the basis of that application. But, we are inclined to think that, in view of the fact that the learned Judge was disposing of a, number of applications in one judgment, he might have made a mistake. That apart, the order clearly shows that this question was raised and finally decided in the prior stage of the execution proceedings.
In the result, this appeal also is allowed but, in tin circumstances, without costs.