TMI Blog1953 (1) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... as made a selection of eight villages, and deeds of sale and relinquishment in respect of them were duly prepared and executed on 4th July, 1933. Before they could be presented for registration, the parties received information that a notification for assumption by the Court of Wards of the management of the talukdar's estate had been issued and that it was likely to render the conveyances ineffectual. In view of the impending notification the sale transaction fell through and a refund was obtained of the amount spent on the stamp papers. On the 20th January, 1934, the Court of Wards decided that it would not take the estate under its supervision. Hari Kishen Das then revived his demand against the judgment-debtor for the completion of the sale deeds but the judgment-debtor did not pay any heed to his request with the result that on 26th May, 1934, he made an application for execution of the compromise decree. To the execution of this decree a number of objections were raised by Raghuraj Singh. Before the disposal of these objections the U.P. Agriculturists' Relief Act (XXVII of 1934) and the U.P. Encumbered Estates Act (XXV of 1934) came into operation. Under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amended decree to His Majesty in Council. By an order of His Majesty in Council passed on 20th January, 1944, the decision of the Chief Court dated 15th February, 1938, was reversed and the amended decree passed by the Civil Judge of Sitapur on 11th January, 1936, was restored. Liberty was given to the appellant to apply to the court of the civil judge, Sitapur, for such relief as he might be entitled to with reference to the recovery of possession of the property. 7. In view of the decision of the Privy Council, Bhagwant Singh (appellant) made an application for restoration of possession and for recovery of profits wrongfully realized by Hari Kishen Das and after his death by his adopted son Sri Kishen Das. This application was strenuously resisted by the creditor and it was pleaded by him that even under the amended decree a sum of ₹ 4,31,148-9-9 including interest and costs had become due to the decree holder on the date of the sale since three installments which had till then fallen due had remained unpaid and the default clause had come into operation and the sale in execution could not be set aside, as it has not caused any injury to the judgment-debtor and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment-debtor to execute a sale deed and on his making a default the civil judge on 24th February, 1939, executed a sale deed on behalf of the judgment-debtor in favour of Rai Bahadur Hari Kishen Das. The U.P. Encumbered Estates Amendment Act (XI of 1939) came into operation after this sale. It allowed the applicants to amend their applications, proceedings in respect of which had been quashed previously. On the 10th October, 1939, Raghuraj Singh applied for amendment of his application. This application was allowed by the sub-divisional officer who passed an order under section 6 of the U.P. Encumbered Estates Act on 18th October, 1939, and forwarded the amended application to the special judge, first grade, Sitapur. On 31st July, 1940, the special judge passed an order to the effect that the proceedings would start afresh. Raghuraj Singh went up in revision to the Chief Court against this order contending that the proceedings should not be deemed as fresh proceedings. The Chief Court dismissed the revision on 9th December, 1940. On a notification issued under section 11 of the Encumbered Estates Act, Hari Kishen Das filed objection on 14th August, 1942, under section 11 claiming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the amended decree as passed by the civil judge under the Relief Act. 13. Having regard to the provisions of section 144 of the code of Civil Procedure, the Chief Court was of the opinion that the sale in 1939 was inevitable and could not have been avoided if the amended decree had been then in force and that if it was set aside it would confer on the appellant an advantage to which his predecessor was not entitled, he having defaulted in the payment of three installments before the sale took place. The following passage from the judgment of the Chief Court expresses the view that it took on this point :- For purposes of section 144 we have in the words of the section 'to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed.' So placing them the issue which falls for determination is whether the judgment-debtor would have paid the accumulated amount of three installments namely ₹ 1,37,839-1-11 in December, 1939. On the evidence the lower court has come to the conclusion with which we agree that Thakur Raghuraj Singh owed no less than rupees fourteen lacks to other cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Privy Council. He should therefore have taken steps to protect himself against being in default with payment of three installments. In order therefore to avoid the default which he would otherwise commit by non-payment of the third installment it was obligatory on him to pay or offer to pay to the decree holder an amount equal to the amount of one installment so that three installments will not be in arrear, or to obtain an order from the Privy Council absolving him from complying with the terms of the amended decree set aside by the Chief Court, even if it was eventually restored. Failing that, he should have obtained a fresh order from the Privy Council fixing the installments and time for the payment. He, however, did nothing and adopted the attitude that he need make no payment and considered himself absolved from satisfying either the original decree or the amended decree. The result of this attitude was that the whole of the decretal amount became due on his failure to pay the third installment provided for under the amended decree in December, 1938, and he thus lost benefit of paying the decretal amount by installments. The amount due from him in February. 1939 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in this, he must take its consequences, which are now different from the consequences of the original decree. Indeed, if in this case the prayer of the judgment-debtor for restitution was granted, it would result in doing not only an injustice but a wrong to the decree holder and the court would not be acting fairly and rightly towards him. As already said, in February 1939 both under the original decree and the amended decree a sum of over rupees four lacks became due to him and he was entitled to get a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages is restored to the judgment-debtor and mesne profits are decreed in his favour, the decree holder would be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity; it would place the judgment-debtor in a position of advantage to which he is not entitled. The executing court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to the decree holder under the amended decree till the date of that order. This obvio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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