Raja Jyoti Prasad Singh Deo vs Ranjit Singh

Das, J.—I am unable to agree with the view taken by the learned Subordinate Judge. Section 3 of the Chota Nagpur Encumbered Estates Act provide that on the publication of an order u/s 2, that is to say, an order vesting in the Manager the management of the whole or any portion of the Immovable property of or to which the holder is then possessed or untitled in his own right, all proceeding which may then be pending in any Civil Court in British India or in any Revenue Court in Bengal in respect of such debt or liabilities shall be barred, and all processes, executions and attachments for or in respect of such debt and liabilities shall become null and void. Section 12 of the same Act provides that when all the debts arid liabilities mentioned in the schedule referred to ingestion 11 have been paid and discharged and the holder of his property or his heir is restored to the possession and enjoyment of the property, such restoration shall be notified in the Calcutta Gazette and thereupon the proceedings, processed, executions and attachments mentioned in Section 3 shall be revived.

Now it appears to me that Section 3 gives a statutory protection to a person whose property is brought within the operation Of the Encumbered Estates Act and Section 12 removes that protection when the proprietor is restored to possession, and provides in effect that all remedies which, but for Section 3, the creditor could enforce against the proprietor shall be enforceable against the proprietor as soon as he is restored to possession.

Now, the petitioner brought a mortgage section against four persons, of whom the opposite party was nun. After the commencement of the action there was a notification u/s 2 of the Act, with the consentience that the proceedings which were then pending in resects of the debt due to the petitioner, by the express provision of the Statute, became barred, I use the expression "barred," because the Act, which is very inartistically drafted, uses that expression; but I have no doubt whatever that the word "barred" means nothing more than what is conveyed by the expression "stayed." The petitioner, however, proceeded with the suit, so far as the other mortgagors wore concerned, and consented to an order striking out the name of the opposite party from the record, The petitioner then obtained a mortgage decree against all the mortgagors other than the opposite party. An order has now been made u/s 12, restoring the opposite party to the possession and enjoyment of his property, and the sole question which we have to decide is, whether the petitioner can continua the suit which he instituted against the opposite parity notwithstanding toe fast that he has not obtained a decree against the mortgagors other than the opposite party.

Now it seems to me that the provision in Section 12 is closely analogous to what is known in the Chancery Courts as a proceeding of revivor. Now it is clear that a suit which was perfect at the time when it was instituted may, under certain circumstances, become defective. In such a case no proceeding can be taken in it until an order to revive the suit is made by the Court. If the defeat is due to some impediment to the continuation of the suit, an order of reviver cannot be passed until the impediment is removed; but when the impediment is removed, a Court of Chancery will, in ordinary circumstances, make an order for reviver, provided that the petitioner proceeds with due diligence and satisfies the Court that his claim still remains unsatisfied. That is the Chancery practice and I have no doubt whatever that Section 12 has to some extent introduced that practice here.

But it was argued by the learned Vakil who appears for the opposite party that a mortgage claim is an indivisible claim and the petitioner, having elected to proceed against some of the mortgagor?, has precluded himself from pursuing his remedy against the opposite party. That would be true under ordinary circumstances; but here we are dealing with exceptional legislation whish bars the remedies available to the creditor for no other reason than that the proprietor is in insolvent circumstances and needs protection. The protection having been removed, the creditor is, in my judgment, restored to the position which he occupied at the time when the estate of the proprietor was vested in the Manager under the provisions of the Act.

But the question still remains whether the claim of the petitioner still remains unsatisfied. On this point the parties adduced no evidence whatever. If is obvious that he ought Dot to be allowed to continue the proceeding if his claim has been satisfied by the mortgagors other than the opposite party.

I would set aside the order of the learned Subordinate Judge and remand the case to him for disposal according to law. He must first investigate the question whether the debt due by the mortgagors to the petitioner has been satisfied by some of the mortgagors. If he finds that it has been satisfied, then of course no further proceedings can be taken. If he finds that the debt is still unsatisfied, then he will proceed with the suit.

The petitioner is entitled to his costs.

Ross, J.

I agree.