judgement:
Civil Appeal No. 90 of 1950.
Appeal against the Judgment and Decree dated the 22nd July 1948 of the High Court of Judicature at Calcutta (K. C. Mitter, and K.C. Chunder J J) in appeal from Original Decree No. 49 of 1942 arising 74 574 out of Decree dated the 8th September 1941 of the Subordi nate Judge at Asansole in Suit No. 1 of 1941.
Purusottam Chatterji (section N. Mukherjee, with him) for the appellants.
Panchanan Ghose, (P. C. Chatterjee, with him) for the respondent.
May 4. 'the following judgments were delivered : DAS J.
This appeal arises out of a suit filed by the appellants on January 2, 1941, in the Court of the Subordi nate Judge, Asansole.
That suit came to be filed in circum stances which may now be stated shortly.
A suit had been instituted by one Kumar Dakhineswar Malia against Rameswar Malia, Rani Bhaba Sundari and others for partition of the Searsole Raj Estate.
One Bhagabati Charan Mitra was appointed receiver of that estate in that suit.
On August 10, 1908, the said receiver with the permis sion of the Court which had appointed him as receiver grant ed two mining leases, each for 999 years one in respect of 5/16 share of the Malias in Mouza Monohar Bahal and the other in respect of 230 bighas in village Marich Kota to a firm then carrying on business under the name and style of Laik Banerjee & Company.
On the same day the said receiver with like permission mortgaged these properties to the said firm as security for the due repayment of the loan of Rs. 100,000 advanced by that firm.
The Malias joined the re ceiver in executing the aforesaid leases and the mortgage.
As a result of these transactions the firm of Laik Banerjee & Company became the lessees for 999 years of the two properties as well as the mortgagee of the lessors ' interest in the same.
By diverse processes not necessary to be detailed, the appellants have become the successors in interest of the mortgagors and the respondent Deva Prasanna Mukerjee has become the successor in interest of the mortga gee under the mortgage of August 10, 1908.
575 On March 31, 1922, Deva Prasanna filed suit No. 78 of 1922 for enforcing the mortgage of 1908.
Preliminary decree was passed in the last mentioned suit on ' July 31, 1928, and a final decree for sale was made I on February 26, 1929.
In execution of this final decree the mortgaged properties were sold at a Court i sale and were purchased by Deva Prasanna for ' Rs. 59,000.
This sale was confirmed by the Court on June 30, 1931.
A large sum remaining still due to Deva Prasanna, he applied for, and on October 30, 1935, obtained a personal decree for Rs. 1,27,179 0 6 against Raja Pramatha Nath Malia who had by inheritance acquired the lessors ' interest and become the borrower.
In 1936, Deva Prasanna started execution case No. 118 of 1936 for execution of the personal decree and attached certain properties alleging that the same belonged to the Raja.
The exact date of the attachment does not appear from the printed record.
The Raja as Sibait of a certain deity and his two sons, the appellants before us, objected to the attachment of these properties and filed a claim case.
Negotiations for settlement started and eventually, on January 30, 1937, a petition (exhibit 2) was filed in the exe cuting Court stating as follows : "The judgment debtor having made special requests to the decree holder for an amicable settlement of the aforesaid execution case, the decree holder has agreed to the same.
But some time is required to settle the talks and all the terms etc.
The judgment debtor has paid to the decree holder the costs of this execution amounting to Rs. 76 14 0, and he having made requests for this execution case being struck off for the present on keeping the attachment in force, the decreeholder has agreed to it.
It is, therefore, prayed that under the circumstances aforesaid, the Court may be pleased to strike off this execution case keeping the attachment in force." Neither the original nor a certified copy of the order made on that date by the executing Court on the 576 above petition is forthcoming but the parties have definite ly agreed that the order is substantially and correctly entered in column 20 of exhibit F which is a certified copy of extract from the Register of applications for executions of decrees relating to execution Case No. 118 of 1936.
The heading of column 20 is 'Date on which execution case was finally disposed of and purport of final order.
" The entry in column 20 under that head is: "D. H. admits receipt of Rs. 76 14/ as costs of this case from the J.D.
The execution case is dismissed for non prosecution the attachment already effected in this case continuing.
30th January 1937.
" The entry under column 11 of that very exhibit reads as follows : "Claim case automatically drops as the execution case is dismissed.
It is, therefore, rejected without any sort of adjudication.
30th January 1937.
" In May 1937, the Searsole Raj Estate came under the charge of the Court of Wards.
By a Kobala executed with the permission of the Board of Revenue Raja Pramatha Nath Malia and his two sons Kumars Pashupati Nath Malia and Kshitipati Nath Malia represented by Kumar Kshitipati Nath Malia as the Manager of the Searsole Raj Wards Estate conveyed a property known as Senapati Mahal to Deva Prasanna in full settlement of his claim under the personal decree against the Raja.
By an agreement of even date, Deva Prasanna agreed to reconvey Senapati Mahal to the Kumars if he was paid Rs. 90,000/ within two years from that date.
Senapati Mahal orginally belonged to the Raja but had been tranSferred by him to his two sons.
A creditor, however, had filed a suit under sec tion 53 of the Transfer of Property Act challenging that transfer and had actually got a decree declaring that trans fer as fradulent and void as against the creditors of the Raja 577 An appeal was filed by the Kumars which was pending at the date of the Kobala of January 4, 1939, and, in the circum stances, it was considered safer to join the Raja in the last mentioned Kobala in favour of Deva Prasanna.
On June 2, 1939, a petition was filed in the Court of the Subordinate Judge, Asansole, on behalf of Deva Prasanna as the decree holder.
It was headed "Money Execution Case No. 118 of 1936.
The relevant portions of this petition were as follows; "That the above execution case was disposed of on the 30th January 1937 with the attachment of the properties subsisting; since then the decree put into execution in the above case has been adjusted after remission of a large amount of interest by the out and out sale of certain properties by a registered Kobala dated 4th January 1939 . . . . . . . . .So there is no longer any need of the said attachment remaining subsisting.
It is, therefore, prayed that the attachment may be withdrawn.
" On the same day the following order was made on that petition: " Heard learned pleaders for the parties.
They jointly ask me to cancel the attachment (existing by special order) in Money exhibit 118 of 1936 though that case was dismissed.
Order The said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned plead er for the decree holder and pleader of the judgment debtor according to the adjustment mentioned but not detailed in this petition of to day.
Make necessary notes and send this petition to the District Record Room.
" In the remarks column No. 22 in exhibit F the following entry was made : "The said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned 578 pleader for the D.H. and the pleader of the Judgment Debtor according to the adjustment mentioned but not detailed in this petition of to day.
Dated 2nd June 1989.
" The Raja died in August, 1940, leaving the two appellants as his sons and legal representatives.
The Bengal Money Lend ers Act, 1940 (Bengal Act X of 1940) hereinafter called the Act, came into force on September 1, 1940.
On January 2, 1941, the appellants who, as the legal representatives of the Raja, became "borrowers" within the meaning of the Act filed the suit out of which the present appeal has arisen.
The suit was filed by the appellants against the respondent under section 36 of the Act praying for reopening the trans actions and taking accounts and for release from all liabil ities in excess of the limits specified by law.
In short, they asked the Court to give them relief by exercising the powers given to the Court by section 36 of the Act.
There was also a prayer for reconveyance of the Senapati Mahal.
The respondent filed his written statement setting up a variety of defences rounded on merits as well as on legal pleas in bar.
On May 8, 1941, the Subordinate Judge settled the issues and fixed June 9, 1941, "for a preliminary hear ing of the suit and particularly of such of the issues as have been based on the pleas in bar." Eventually, the case was taken up for preliminary hearing on September 4, 1941, and by his judgment delivered on September 8, 1941, the learned Subordinate Judge dismissed the suit on issue No. 2 which was as follows: "Does the plaint disclose a valid cause of action for the suit ?" The appellants preferred an appeal to the High Court at Calcutta.
Although the High Court (R.C. Mitter and K.C. Chunder JJ.) did not accept all the reasonings on which the learned Subordinate Judge had based his decision, they, however, agreed that the appellants could get no relief as the decrees in suit No. 78 of 1922 could not be reopened, as they were not passed in 579 "a suit to which this Act applies" and consequently dis missed the appeal.
The appellants have now come up on appeal before us after having obtained a certificate from the High Court under section 110 of the Code of Civil Procedure.
Learned Advocate appearing in support of this appeal before us has contended that the High Court was in error in holding that the decrees in Suit No. 78 of 1922 were not liable to be reopened under the second proviso to section 36 (1).
Learned advocate for the respondent while joining issue on this point also raised a point which, however, did not find favour with the High Court, namely, that the respondent as a bona fide assignee for value of the mortgage debt was protected by sub section (5) of section 36.
It is quite clear that if either of the two points is decided against the appellants, this appeal must fail.
The main provisions of section 36 (1)are in the follow ing terms : "Notwithstanding anything contained in any law for the time being in force, if in any suit to which this Act ap plies, or in any suit brought by a borrower for relief under this section, whether heard ex parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the bor rower, it shall exercise all or any of the following powers as it may consider appropriate namely, shall (a) reopen any transaction and take an account between the parties; (b) notwithstanding any agreement, purporting to close previous dealings and to create new obligations, reopen any account already taken between the parties; (c) release the borrower of all liability in excess of the limits specified in clauses (t) and (2) of section 30; (d) if anything has been paid or allowed in account on or after the first day of January, 1939, in respect of the liability referred to in clause (c), order 580 the lender to repay any sum which the Court considers to be repayable in respect of such payment or allowance in account as aforesaid; (e) set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan, and if the lender has parted with the security, order him to indemnify the borrower in such manner and to such extent as it may deem just.
" It will be noticed (a) that the provisions of this section apply notwithstanding anything contained in any law for the time being in force, (b) that the powers conferred on the Court or to be exercised either in any suit to which this Act applies or in any suit brought by a borrower for relief under the section and (c) that the Court is called upon to exercise all or any of the powers conferred on it by the section if the Court has reason to believe that the exercise of one or more of the powers will give relief to the borrower.
In the present case the borrowers have insti tuted a substantive suit for relief under section 36 and, therefore, if there was nothing also in the section and the Court had the requisite belief, the Court could exercise all or any of the powers and give relief to the borrowers in terms of the prayers of the plaint.
There are, however, two provisions to sub section (1) of section 36.
The relevant portion of the second proviso is expressed in the words following: "Provided that in exercise of these powers the Court shall not (i) * * * * (ii) do anything which affects any decree of a Court, other than a decree in a suit to which the Act applies which was not fully satisfied by the first day of January, 1939, or * * * *" The proviso makes it quite clear that in exercise of the powers the Court cannot reopen or otherwise affect a decree of a Court unless such decree is one which was passed in a suit to which this Act applies and ' which was not fully satisfied by January 1, 1939.
In the light of the decision of the Full Bench of the 581 Calcutta High Court in Mrityunjay Mitra vs Satis Chandra Banerji(1) which was approved by the Privy Council in Jadu Nath Roy vs Kshitish Chandra Acharyya(2), it has not been contended, in view of the fact that the personal decree for the balance remained unsatisfied on January 1, 1939, that the decrees in Suit No. 78 of 1922 were fully satisfied within the meaning of the above proviso.
Therefore, the only thing that remains to be ascertained is whether the decrees were passed in "a suit to which this Act applies.
" Section 2 (22) of the Act is as follows: "2.
In this Act, unless there is anything repugnant in the subject or context" (22) "Suit to which this Act applies "means any suit or proceeding instituted or filed on or after the 1st day of January, 1939, or pending on that date and includes a pro ceeding in execution (a) for the recovery of a loan advanced before or after the commencement of this Act; (b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken, in respect of any loan advanced whether before or after the commencement of this Act; or (c) for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act.
" The words "instituted or filed on or after the 1st day of January, 1939, or pending on that date" have been read and understood as qualifying the words "any suit or proceed ing" in the beginning of the definition as well as the words "proceeding in execution" occurring further down: see per Spens C.J. in Bank of ' Commerce Ltd. vs Amulya Krishna (3).
Accordingly, it has (1) I.L.R. 11944) 2Cal. 376; (2) L.R. 76 I.A. 179 at p. 190.
(3) ;A.I.R. 1944 F.C. 18.
582 been held in Ram Kumar De vs Abhoya Pada Bhattacharjee (1) that where a decree is such that the suit in which it was passed had terminated before January 1, 1939, and no pro ceeding in execution was started or was actually pending on or after that date it is not a decree in "a suit to which this Act applies"and cannot be reopened.
The same view was upheld by a Special Bench of the Calcutta High Court in Aparna Kumari vs Girish Chandra (2)which overruled two earlier decisions to the contrary.
The construction put upon section 2 (22)by the Special Bench and the reasons given by them appear to us to be well founded.
In the case now before us, the Suit No. 78 of 1922 was instituted and all the three decrees were passed long before the specified date.
The only question that has therefore, to be consid ered is whether any proceeding in execution was pending on or after that date.
The answer to this question will depend on the true meaning and effect of the orders made by the executing Court (i) on January 30, 1937, and (ii) on June 2, 1939.
As to (i) It is not disputed that the order of January 30, 1937, was made under Order XXI, rule57, as amended by the Calcutta High Court.
Order XXI, rule 57, is expressed in the following terms : "Where any property has been attached in execution of a decree but by reason of the decree holder 's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date.
Upon the dismissal of such application the attachment shall cease.
" The marginal note of the rule is determination of at tachment.
The reason why rule 57 was introduced in the Code of 1908 has been explained by Rank in C.J. in Shibnath Singh Ray vs Sheikh Saberuddin Ahmad(3) as follows: (1) ; (2) (3) I.L.R. at pp.
421 422 583 "Rule 57 of Order XXI was a new provision introduced in 1908.
It is evident from the language of the rule itself, and it is still more evident from the circumstances under which it was passed, that it was intended to provide a remedy for the grievance or inconvenience which is apt to arise, where, after an attachment in execution, the applica tion for execution cannot further be proceeded with by reason of the decree holder 's default.
This was, and still is, a very common case.
The decree holder makes some informal arrangement to give the judgment debtor time with out obtaining full satisfaction of the decree ;the applica tion for execution is not further prosecuted; it is not withdrawn; neither party attends.
In these circumstances, the object of the rule is to say that the Court must make either an order for adjournment or an order of dismissal.
The reason why it was necessary to require the Court, if it did not adjourn a proceeding to a definite date, to dismiss the application for execution formally and definitely can be amply illustrated from the decided cases.
In the absence of a definite order of dismissal the files of the Courts became encumbered with a number of applications for execution which were water logged and derelict, and a practice arose whereby such applications were ordered to be 'struck off. ' This was a practice not justified by the Code and in cases where attachments in execution had already been entered, the question arose whether the effect of an order 'striking off ' was that the attachment made upon application for execution was itself struck off or whether it remained notwithstanding such an order.
Many other awkward and important questions arose out of this practice and the object of rule 57 was to ensure that this illogical and inconvenient practice should be stopped.
Applications for execution were to be definitely dismissed if they were not adjourned to a future date.
The object of the last sentence in rule 57 is to settle the question whether, when the application in execution is dismissed any attachment made under that application should fall to the ground or should subsist, and 584 the legislature has provided that it is to fall to the ground.
" The new rule thus ' introduced left two distinct courses open to the executing Court in the situation envisaged by the rule.
Each course had its advantage as well as its disadvantage.
Thus the adjournment of the execution pro ceedings kept the attachment alive without any special direction.
While the adoption of this course helped bona fide arrangement between the decree holder and the judgment debtor as to the time and manner of satisfaction of the decree it was calculated also to encourage desultory proceedings resulting in undesirable congestion in the files of the Executing Court by keeping alive so many execution proceedings.
On the other hand, while the dismissal of an application in the circumstances mentioned in the rule had the merit of preventing a congestion of the file by finally disposing of the application by a final order, it was calcu lated to discourage decreeholders from giving even reasona ble accommodation to the judgment debtor on account of the destruction of the attachment which left the judgment debtor free to deal with the property to the detriment of the decreeholder after the attachment ceased.
It was evidently with a view to preserve the advantage of a dismissal and at the same time to avoid the disadvantage of the rigid rule of cesser of the attachment that the Calcutta High Court amend ed rule 57 by adding the words "unless the Court shall make an order to the contrary" at the end of the last sentence of that rule.
The rule thus amended leaves three courses open to the Executing Court in case it finds it difficult to proceed with the execution case by reason of the default of the decree holder.
It may (1) adjourn the proceedings for good reason which will automatically keep the attachment alive or (2) simply dismiss the application which will automatically destroy the attachment or (3) dismiss the application but specifically keep alive the attachment by an express order.
The rule, as amended, therefore, contemplates three distinct forms of order, any one of which may be made by the Court in the 585 circumstances mentioned in the rule.
The question before us is as to the category in which the order made on January 30, 1937, in Execution Case No. 118 of 1936 falls.
It will be recalled that the order of January 30, 1937, was made on a petition (Exhibit 2) filed on that day in Execution Case No. 118 of 1936.
Great stress was laid by the learned advocate for the appellants on the words "struck off for the present" occurring in the body of that petition.
It will be noticed that those words formed part of the request of the judgmentdebtor which was being recited in the petition.
In the actual prayer portion the decree holder did not use the words "for the present" but only asked the Court "to strike off the execution case keeping the attachment in force.
" Further, apart from what the parties wanted, the Court made its intention clear in the very order that it passed and which is entered in column 20 of Exhibit F.
The Court regarded the willingness of the the decree holder to enter into a long and protracted negotiation with the judg ment debtor as evidence of unwillingness on the part of the decree holder to diligently prosecute the execution proceedings and accordingly dismissed the execution case for non prosecution but thought fit to expressly keep alive the attachment.
It is quite obvious that the Court made an order of the third kind mentioned above.
The three forms of order permissible under rule 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping.
If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending rule 57 at all.
The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf.
The fact that the Court gave an express direction that the attachment should continue clearly indicates that the 586 Court intended to make a final order of dismissal.
Again, the heading of column 20 in Exhibit F clearly indicates that only a final order is to be entered in that column.
The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal.
That the claim case was automatically dropped is yet another indication that the execution case was at an end.
The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not deci sively, that the execution proceeding was finally disposed of by the order.
The following endorsement appears on the petition exhibit 2 (a), dated June 2, 1939: "Heard learned pleaders for the parties.
They jointly ask me to cancel the attachment (existing by special order) in Money exhibit 118 of 1936 though that case was dismissed." This endorsement also clearly shows that the Court itself understood that the order that it made on January 30; 1937, was a final order of dismissal and that the attachment had been continued by a special order.
On a consideration of all these matters I have not the least doubt in my mind that the order of January 30, 1937, was in form and in substance a final order of dismissal of the Execution Case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amend ment made by the Calcutta High Court in rule 57.
Learned advocate for the appellants contended that if the execution case came to an end the attachment could not be left hanging in the air.
There is no substance in this argument.
Ordi narily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fail with it.
But rule 57, as amended, expressly empow ers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order.
That is what was done in this case.
Here the attachment does not, to use the expression of the learned advocate for the appellants, 587 hang in the air.
It rests upon the solid foundation of a special order which rule 57, as amended, in terms authorises the Court to make.
The continuance of the attachment, in the circumstances, needs no execution proceeding to support it.
Take the case of an attachment before judgment.
Under Order XXXVIII, rule 11, where after an order of attachment before judgment a decree is passed in favour of the plaintiff, it is not necessary upon an application for execution of such a decree to apply for re attachment of the property.
It means that the attachment continues and the judgmentdebtor cannot deal with the property to the disadvantage of the decree holder.
After the decree is passed, the attachment continues but nobody will say that although there has been no applica tion for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceed ing pending merely because the attachment continues.
Here also the attachment subsists and rests only upon the terms of Order, XXXVIII rule 11, and without any proceeding.
Such attachment cannot be called a proceeding in execution, for none was ever initiated after the decree was passed.
In my judgment, the order of January 30, 1937, was a final order which brought the Execution Case No. 118 of 1936, to an and and the attachment continued, not because there was a pend ing execution proceeding but because a special order was made under Order XXI, rule 57, as amended by the High Court.
As to (ii) Learned advocate for the appellants then contended that the petition (exhibit 2a) dated June 2, 1939, amounted to a proceeding in execution and as that was insti tuted and was pending after January 1, 1939 the proceedings came within the definition in section 2 (22)of "a suit to which this Act applies".
I do not think this argument is sound.
The petition (Ex.2a) was not really an application at all.
See Raja Shri Prakash Singh vs The Allahabad Bank Ltd. (1).
In substance, it was nothing but a certification by the decree holder of the satisfaction of the decree.
The mere fact (1) 33 C.W.N. 267; A.I.R. 1929 P.C. 19, 588 that the document was in the form of a petition could not convert what was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement.
It was purely an intimation given to the Court by the decreeholder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded.
The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled.
In my judgment, that petition (exhibit 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in clauses (a) or (b) or (c) of section 2 (22) of the Act.
For reasons stated above, the decrees sought to be reopened were not decrees made in "a suit to which this Act applies".
Suit No. 78 of 1922 was neither instituted on or after January 1, 1939, nor was it pending on that date, all the three decrees having been passed long before that date.
Nor was any proceeding in execution such as is contemplated by section 2 (22) instituted or pending on or after that date.
The Execution Case No. 118 of 1936 was at an end on January 30, 1937, and the petition of June 2, 1939, was not an application at all and was certainly not a proceeding in execution within the meaning of section 2 (22) of the Act.
This conclusion is sufficient to dismiss this appeal and it is not necessary for us to consider the other question raised by the respondent on the strength of section 36 (5) of the Act and I express no opinion on that question.
The result is that this appeal must stand dismissed with costs and I order accordingly.
KANIA C.J. I agree.
PATANJALI SASTRI J.
The facts bearing on the dispute in this appeal are fully stated in the judgment of ray brother Das which I have had the advantage of reading and it is unnecessary to recapitulate them here.
589 The appellant mortgagor seeks in these proceedings the reliefs provided by the Bengal Money lenders Act, 1940 (hereinafter referred to as the Act) in respect of a decree debt payable by him.
The respondent who represents the sub mortgagee decree holder invokes the protection of two exemptions contained in the Act: (1) Section 86 (1), proviso (ii), which exempts inter alia "any decree other than a decree in a suit to which this Act applies which was not fully satisfied by the first day of January, 1939".
This raises a dispute as to whether the respondent 's decree was passed in a suit to which the Act applies.
(2) Section 36 (5) which exempts "the rights of any assignee or holder for value if the Court is satisfied that the assignment to him was bona fide and that he had not received the notice re ferred to in clause (a) of sub section (1) of section 28".
This raises the question whether a sub mortgagee is an assignee within the meaning of the Act.
On the first question "a suit to which this Act applies" is defined in section 2 (22) as meaning "any suit or pro ceeding instituted or filed on or after the 1st day of Janu ary, 1939, or pending on that date and includes a proceeding in execution for (among other things) the recovery of a loan advanced before or after the commencement of this Act.
" This definition has been construed as requiring that the "pro ceeding in execution "referred to therein should be pending on 1st January, 1939, and the question accordingly arises whether the order of the executing court dated 30th January, 1937, which purported to dismiss the respondent 's execution case for non prosecution while continuing the attachment already effected, terminated the proceeding in execution which had resulted in the attachment.
It was said that the order was made in accordance with Order XXI, rule 57, of the Civil Procedure Code as amended by the Calcutta High Court and must, therefore, be taken to have been intended to put an end to the execution proceeding altogether.
I am not satisfied that such was the result of the dismissal.
The amendment which added the words "unless the court shall make an order to the contrary" 200 at the end of the rule envisages a dismissal of an "applica tion for execution" while at the same time continuing a subsisting attachment.
The dismissal of 30th January, 1987, must, therefore, be taken to be a dismissal of the execution application then before the court and cannot be taken to have any wider operation.
On the other hand, the continu ance, in express terms, of 'the attachment notwithstanding the dismissal, indicates that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property.
Attachment itself is a "proceeding in execution" and, so long.as it subsists, the proceeding in execution can well be regarded as pending.
In In re Clagett 's Estate; Fordham vs Clagett (1) Jessel M.R. declared that "a pending matter in any court of justice means one in which some proceeding may still be taken".
The attachment was cancelled by the court only on 2nd June, 1939, when the decree in question was recorded as adjusted and then, and not before, could execu tion of the decree be properly considered to have terminat ed.
In this view, a "proceeding in execution" was pending on the 1st day of January, 1939, and the respondent 's decree must be taken to have been passed "in a suit to which this Act applies ' ', with the result that the respondent 's claim to exemption under proviso (ii) to sub section (1) of sec tion 36 of the Act must fail.
I am, however, of opinion that the respondent 's claim to recover his decree debt is protected under section 36 (5).
There is no question here but that the submortgage to the respondent 's predecessor in title was bona fide.
Nor could he have received the notice referred to in clause (a) of ' sub section (1) of section 28 as the transaction took place long before the Act was passed.
It is not disputed that section 36 (5) applies to pre Act debts.
[See Renula Bose vs Manmatha Nath Bose(2)].
The only question, therefore, is whether the respondent as sub mortgagee is an assignee within the meaning of sub section (5) of section 36.
The learned (1) (2) L.R. 72 I.A. 156, 591 Judges in the court below held that he was not, following an earlier decision of their own court in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(1).
That decision, however, was reversed by the Privy Council in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(2) where their Lordships dealt with the question now before us in the following terms : "It was suggested, in the judgment of Mitter J. (with which Waight J. agreed), and in the argument for the re spondents that if a sub mortgagee were an `assignee ' within section 36, sub section (5), of the Act.
, certain difficul ties and anomalies would result.
Their Lordships cannot agree with this suggestion.
They express no view as to the position which arises if the sub mortgage contains only a charge on the original mortgage debt, but when it contains an assignment of that debt, and of all the rights of the mortgagee, the position appears to be free from difficulty.
Relief can be given to the original mortgagor as against the original mortgagee under section 36, but such relief must not affect the rights of the assignee by way of sub mort gage.
To take an imaginary case by way of illustration, let it be assumed that the amount due on the original mortgage, for principal and interest at the original rate, is Rs. 1,000, and the sum due on the sub mortgage by assignment, for principal and interest at the original rate, is Rs. 500.
Let it further be assumed that if relief could be given, and were given, under section 36 as against both mortgagee and sub mortgagee, the sums due to them respectively would be Rs. 800 and Rs. 400.
By reason of sub section (5), the sub mortgagee 's rights cannot be affected.
He can therefore, as assignee of the mortgage debt: claim his full Rs. 500, as against both mortgagor and original mortgagee.
But if the court gives the mortgagor relief as against the original mortgagee, the mortgagor will only be liable to pay to the original mortgagee Rs. 300, the balance of the reduced debt after paying the sub mortgagee in full.
As to contention (b), it is impossible to read subsec tion (5) of section 36 as referring only to an assignee (1) (2) L.R. 76 I.A. 74.
592 of a mortgage decree.
The words and that he had not received the notice referred to in clause (a)of subsection (1) of section 28 make it plain that an assignee of a mortgage debt is within the sub section, since section 28, sub section (1) is concerned only with assignment of debts" (pp. 83 84).
The sub mortgage here in question also contains an assignment of the debt due under the original mortgage debt and of "the entire interest" of the original mortgagee.
After reciting their original mortgage, the mortgagees proceed to state in the deed of sub mortgage: "We mortgage all that is at present due and that will in future become due to us, the first, second, third and fourth parties, on account of the said one lakh of rupees together with interest and the entire interest under the mortgage taken by us on the basis of the said Indenture in respect of five annas share of the said Niskar Mouza Mono harbahal and in respect of sixteen annas of the surface and underground rights in the said Mouza Marichkota and we make over the said Deed of Indenture to you".
The decision referred to above is, therefore, directly in point and rules the present case.
It was suggested that the said decision was inconsist ent with the earlier decisions of the same tribunal in Ram Kinkar Banerjee vs Satya Charan Srimani(1) and Jagadamba Loan Co. vs Raja Shiba Prasad Singh(2).
Stress was laid upon the expression "all the rights of the mortgagee" used by their Lordships in the passage quoted above, and it was pointed out that in the earlier decisions they held that in India a legal interest remained in the mortgagor even when the mortgage was in the form of an English mortgage, and that the interest taken by the mortgagee was not an absolute interest.
This proposition, it was said, implied that in a sub mortgage all the rights of the original mortgagee are not assigned to the sub mortgagee and that the mortgagee still retains a legal (1) 64 I.A. 50.
(2) 68 I.A. 67.
593 interest in the original mortgage.
This is a rather super ficial view of the matter.
In the earlier cases their Lordships were considering the quantum of interest trans ferred by a mortgagor to a mortgagee in a mortgage of leasehold interest for the purpose of determining whether or not there was privity of estate between the landlord and the mortgagee.
If the mortgage could operate as an assign ment of the entire interest of the mortgagor in the lease, the mortgagee would be liable by privity of estate for the burdens of the lease.
If on the other hand, it operated only as a partial assignment of the mortgagor 's interest, no such result would follow.
It was in determining that issue that their Lordships held that no privity of estate arose in India because a legal interest remained in the mortgagor and the interest taken by the mortgagee was not an absolute interest.
These cases had no bearing on the question, which arose in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya (1) and arises in the present case, as to whether a sub mortga gee becomes an assignee of the mortgage debt and of the mortgagee 's right to recover the debt from the original mortgagor.
The Act affords relief to certain classes of debtors by curtailing pro tanto the rights of the creditors, subject to certain exceptions in regard to "assignments of loans".
In such a context the only relevant consideration could be whether the assignment is such as to establish a debtor and creditor relation between the assignee and the debtor so as to bring the case within the purview of the Act.
If the sub mortgagee obtained, by virtue of the sub mortgage, the right to sue the original mortgagor for recov ery of the mortgage debt, that would seem sufficient to make him an assignee within the meaning of the Act.
It was from this point of view that the question as to the nature of the right transferred to a sub mortgagee under his sub mortgage was considered in Promode Kumar Roy vs Nikhil Bhusan Mukho padhya(1) as it has to be considered in the present case, and the reference to the sub mortgage containing an assign ment of all the rights (1) 76 I,A. 74.
594 of the mortgagee must, in that context, be understood with reference to the sufficiency of the right assigned to enable the sub mortgagee to sue the original mortgagor in his own right, so as to bring the relevant provisions of the Act into play as between them.
The reservation made by their Lordships in the case of a sub mortgage containing only a charge on the original mortgage is significant and supports this view.
I do not consider, therefore, that there is any inconsistency between Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(1) and the earlier decisions, and even if there be any such inconsistency it has no relevance to the present case.
In the result I agree that the appeal fails and should be dismissed with costs.
Appeal dismissed.

summary:
A decree on a mortgage was passed in a suit brought by the representatives in interest of a sub mortgagee in 1929 and a personal decree for recovery of the amount remaining due after the sale of the mortgaged properties was passed in 1935.
In 1936 the decree holder started execution of the personal decree and attached certain properties of the judgment debtor.
The decree holder filed a petition on January 30, 1937, praying that the execution case "may be struck off for non prosecution, keeping the attachment in force" in view of certain negotiations for amicable settle ment, and the court passed an order that the execution case "is dismissed for non prosecUtion, the attachment 573 already effected continuing".
On June 2, 1939, the decree holder filed a petition stating that the decree had been adjusted and attachment may be withdrawn.
The Bengal Money lenders Act came into force on September 1, 1940, and on January 2, 1941, the legal representatives of the judg ment debtor filed a suit under section 36 of the Act praying for re opening the transactions.
The question being whether any proceeding for execution was pending on or after January 1, 1939, within the meaning of the definition of "a suit to which this Act applies" contained in section 2 (22) of the Bengal Money lenders Act: Held, per KANIA C.J. and DAs J. That the order of January 30, 1937, was in form and in substance a final order of dismissal of the execution petition of 1936.
The attach ment continued not because there was a pending execution proceeding but because a special order for continuing the attachment was made under O. 21, r. 57 of the Civil Proce dure Code as amended by the Calcutta High Court, and not withstanding the fact that the attachment was continued there was no execution proceeding pending on January 1, 1939, and accordingly the decree sought to be reopened was not one passed in "a suit to which the Act applies" within the meaning of section 2 (22) of the Act and the Court had no power to re open the transactions under section 36 (2).
The petition of June 2, 1939, was also not a proceeding for execution but a mere certification by the decree holder of satisfaction of the decree.
PATANJALI SASTRI J.
The continuance of the attachment notwithstanding the dismissal of the execution petition, indicated that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property.
Attachment itself is "a proceeding in execution" and so long as it subsists, the proceeding in execution can well be regarded as pending.
In this view a proceeding in execution was pending on January 1, 1939, and the decree must be taken to have been passed in "a suit to which this Act applies ".
But inasmuch as the sub mortgage to the respondent 's predecessor in title was bona fide and he obtained by virtue of the sub mortgage the right to sue the original mortgagor for recovery of the mortgage debt, the decree holder was a bona fide assignee and his claim for the entire decree debt was protected by section 36 (5) of the Act.
Renula Bose v, Manmatha Nath Bose (L.R. 72 I.A. 156), Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya (50 C.W.N. 407) and Prom ode Kumar Roy vs Nikhil Bhusan Mukhopadhya (L.R. 76 I.A. 74) referred to.


judgement:
Appeal No. 121 of 1955.
Appeal from the judgment and decree dated April 22, 1953/24th February, 1954, of the Allahabad High Court (Lucknow Bench) in F. C. Appeal No. 50 of 1947, arising out of the judgment and decree dated April 15, 1947, of the Court of the Civil Judge, Bahraich, in Regular Suit No. 25 of 1946.
section K. Dar, Ch.
Akhtar Hussain and C. P. Lal, for the appellants.
Niyamatullah, Onkar Nath Srivastava, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for respondent No. 1. 1958.
September 16.
The Judgment of the Court was delivered by 1289 GAJENDRAGADKAR J.
The suit from which this appeal arises relates to a shrine and tomb known as Darga Hazarat Syed Salar Mahsood Ghazi situated in the village of Singha Parasi and properties appurtenant to it.
The plaintiffs who have preferred this appeal are members of ' the Waqf Committee, Darga Sharif, Bharaich, and, in their suit, they have claimed a declaration that the properties in suit were not covered by the provisions of the United Provinces Muslims Waqfs Act (U. P. XIII of 1936) (hereinafter described as the Act).
The declaration, the consequential injunction and the two other subsidiary reliefs are claimed primarily against respondent 1, the Sunni Central Board of Waqf, United Provinces of Agra and Oudh.
Two trustees who did not join the appellants in filing the suit are impleaded as pro forma defendants 2 and 3 and they are respondents 2 and 3 before us.
It appears that respondent 1 purported to exer cise its authority over the properties in suit under the provisions of the Act and that led to the present suit which was filed on October 18, 1946 (No. 25 of 1946).
The appellants ' case is that the properties in suit are outside the operative provisions of the Act and not subject to the jurisdiction of respondent 1, arid so, according to the appellants, respondent 1 has acted illegally and without jurisdiction in assuming authority over the management of the said properties.
That is the basis of the reliefs claimed by the appellants in their plaint.
The appellants ' claim was resisted by respondent I on several grounds.
It was alleged that the properties in suit did form a waqf as defined by the Act and were covered by its operative provisions.
It was urged that respondent I was a duly constituted Sunni Central Board and it was authorised to exercise supervision over the management of the said waqf.
The case for respondent I also was that the appellants ' suit was barred by limitation and was incompetent inasmuch as before the filing of the suit the appellants had not given the statutory notice as required by section 53 of the Act.
On these pleadings several issues were framed by the 1290 learned trial judge; but the principal points in dispute were three : (1) Are the properties in suit governed by the Act ? (2) Is the suit in time ? and (3) Is the suit maintainable without notice as required by section 53 of the Act ? The learned trial judge held that the properties in suit cannot be held to be waqf as defined by the Act.
In his opinion it was not the village Singha Parasi but its profits free from land revenue that had been granted in trust for the shrine and its khadims; and since the usufruct of the profits was subject to the condition of resumption and since the profits had not been vested in the Almighty, the grant cannot be construed to be a waqf as contemplated by Muhamniadan Law.
On the question of limitation the learned judge held that section 5(2) of the Act applied to the suit ; but, according to him, though the suit was filed beyond the period of one year prescribed by the said section, it was within time having regard to the provisions of section 14 of the Limitation Act.
The plea raised by respondent 1 under section 53 of the Act was partly upheld by the learned trial judge; he took the view that the first three relief, , claimed by the appellants were barred but the fourth was not.
In the result the learned judge granted a declaration in favour of the appellants to the effect that " the shrine in question together with its attached buildings and the Chharawa were not waqf properties within the meaning of the Act.
" As a consequence, an injunction was issued restraining respondent 1 from removing or dissolving the committee of management of the appellants and respondents 2 and 3 " not otherwise than provided for under section 18 of the Act in so far as the management and supervision of those properties are concerned in respect of which the appellants were not being granted a decree for a declaration sought for by them in view of the absence of the notice under section 53 of the Act ".
The rest of the appellants ' claim was dismissed.
This decree was passed on April 15, 1947.
1291 Against this decree respondent I preferred an appeal in the High Court of Judicature at Allahabad (Lucknow Bench) and the appellants filed cross objections.
The High Court has reversed the finding of the trial court on the question as to the character of the properties in suit.
According to the High Court the said properties constituted waqf as defined by the Act.
The High Court has also held that the suit filed by the appellants was barred by limitation and was also in ' competent in view of the fact that the statutory notice required by section 53 of the Act had not been given by the appellants prior to its institution.
As a result of these findings the appeal preferred by respondent I was allowed, the appellants ' cross objections were dismissed, the decree passed by the trial court was set aside and the appellants ' suit dismissed (April 22, 1953).
The appellants then applied for and obtained a certificate from the High Court to prefer an appeal to this Court under article 133 of the Constitution.
That is how this appeal has come to this Court.
Though the dispute between the parties raises only three principal issues, the facts leading to the litigation are somewhat complicated ; and it is necessary to mention them in order to get a clear picture of the background of the present dispute.
It is believed that Syed Salar Mahsood Ghazi was a nephew of Muhammad Ghazni and he met his death at the hands of a local chieftain when he paid a visit to Bahraich.
On his death his remains were buried in village Singha Parasi by his followers and subsequently a tomb was constructed.
In course of time this tomb became an object of pilgrimage and veneration.
Urs began to be held at the shrine every year and it was attended by a large number of devotees who made offerings before the shrine.
It is partly from the income of these offerings that the tomb is maintained.
Certain properties were endowed by the Emperors of Delhi in favour of this tomb and accretions were made to the said properties by the savings from the income of the endowed properties and the offerings brought by the devotees.
164 1292 The tomb was managed by a body of persons known as Khuddams of the Darga.
This body had been looking after the Darga and the performance of ceremonies and other services at the shrine.
Whilst the management of the Darga was being thus carried on, Oudh came to be annexed in 1856 and the proclamation issued by Lord Canning confiscated all private properties and inams in the said State.
The properties attached to the Darga were no exception.
Fresh settlements were, however, subsequently made by the Government as a result of which previously existing rights were revived usually on the same terms as before.
This happened in regard to the properties appertaining to the Darga.
It would appear that in 1859 or 1860 a Sanad had been granted to Fakirulla who was the head of the khadims in respect of rent free tenure of the village Singha Parasi.
The grantee was given the right to collect the usufruct of the village which was to be appropriated towards the maintenance of the Darga.
The grantee 's son Inayatulla was apparently not satisfied with the limited rights granted under the Sanad and so he brought an action, Suit No. 1 of 1865, claiming proprietary rights in the said properties.
Inayatulla 's suit was substantially dismissed on November 11, 1870, by the Settlement Officer.
It was held that the proprietary rights of the Government in respect of the properties had been alienated for ever in favour of the charity and so the properties were declared to vest in the endowment.
Inayatulla 's right to manage the said properties under the terms of the grant was, however, recognized.
Soon after this decision, it was brought to the notice of the Chief Commissioner in 1872 that the khadims at the Darga were mismanaging the properties of the Darga and were not properly maintaining the Darga itself.
On receiving this complaint a committee of mussalmans was appointed to examine the affairs of the Darga and to make a report.
The committee submitted its report on February 20, 1877, and made recommendations for the improvement of the management of the Darga and its properties.
According to the committee, it was necessary to appoint a jury of five persons including two khadims to manage the Darga and its properties.
Meanwhile some of the lands appurtenant to the Darga had been sold and offerings made by the devotees as well as other properties had become the subject matter of attachment.
In the interest of the Darga, Government then decided to take possession of the properties under the provisions of Pensions Act, (XXIII of 1873.) This decision was reached after the Government had considered the report made by the Deputy Commissioner on August 31, 1878.
The result of declaring that the properties were governed by the provisions of the Pensions Act was to free the properties from the mortgages created by the khadims.
The management of the Darga and its properties by the Government continued until 1902.
During this period Inayatulla attempted to assert his rights once more by instituting a suit in the civil court in 1892.
In this suit Inayatullah and two others who had joined him claimed possession of the Darga together with the buildings appurtenant thereto and village Singha Parasi.
Their claim was decreed by the trial court; but on appeal the said decree was set aside on July 20, 1897.
The appellate court of the Judicial Commissioner held that Inayatulla 's allega tion that the proprietary interest in the properties vested in him was not justified.
Even so, the appellate court observed that it was not proper or competent for the Government to interfere in the management of the waqf and its properties; the Darga was a religious establishment within the meaning or Religious Endowments Act (XX of 1863) and the assumption of the management of the Darga and its properties was unauthorised and improper.
As a result of these observations the Legal Remembrancer to the Government of the United Provinces of Agra and Oudh filed a suit, No. 9 of 1902, under section 539 (present section 92) of the Code of Civil Procedure.
This suit ended in a decree on December 3, 1902.
By the decree the properties in suit were declared " to vest in the trustees when appointed ".
The decree further provided for a scheme for the management of 1294 the Darga and its properties.
The scheme thus framed came into operation and the trustees appointed under it began to manage the Darga and its properties.
The scheme appears to have worked smoothly until 1934.
In 1934 Ashraf Ali and others clamed (Suit No. 1 of 1934) that an injunction should be issued restraining the defendants from taking part in the management of the affairs of the Darga.
The plaintiffs also prayed that the defendants should be prohibited from spending monies belonging to the waqf on frivolous litigations due to party feelings.
On May 7, 1934, the learned District Judge expressed his regret that animosity and party feelings should find their way in the management of a trust and issued an order directing the defendant committee that no money out of the Darga funds should be spent either in the litigation pending before him, or in any other litigation, without the sanction of the court.
For nearly six years after the date of this order the Darga and its properties appear to have been free from any litigation.
This peace was, however, again disturbed in 1940 when a suit was filed (No. 1 of 1940) with the sanction of the Advocate General by five plaintiffs against the managing committee and its trustees for their removal and for the framing of a fresh scheme.
On October 16, 1941, the suit was decreed.
The managing committee and the trustees, however, challenged the said decree by preferring an appeal to the Chief Court.
Their appeal succeeded and on March 7, 1946, the decree under appeal was set aside, though a few minor amendments were made in the original scheme of management.
Whilst this litigation was pending between the parties, the United Provinces Muslim Waqfs Act (U.P. XIII of 1936) was passed in 1936 for better governance, administration and supervision of the specified muslim waqfs in U. P.
In pursuance of the provisions of the Act, respondent I was constituted and, under section 5(1), it issued the notification on February 26, 1944, declaring the properties in suit to be a Sunni Waqf under the Act.
After this notification was issued, respondent 1 called upon the committee of management of 1295 the waqf to submit its annual budget for approval and to get its accounts audited by its auditors.
Respondent I also purported to levy the usual contributions against the waqf under section 54 of the Act.
The members of the committee of management and the trustees with the exception of two persons held that the properties in suit did not constitute a waqf within the meaning of the Act and that respondent 1 had no authority or jurisdiction to supervise the management of the said properties.
That is how the appellants came to institute the present suit on October 18, 1946, against respondent 1.
That in brief is the back ground of the present dispute.
For the appellants Mr. Dar has raised three points before us.
He contends that the High Court was in error in coming to the conclusion that the properties in suit constituted a waqf over which respondent I can exercise its authority or jurisdiction and he argues that it was erroneous to have held that the appellants ' suit was barred by section 5(2) and was incompetent under section 53 of the Act.
Mr. Dar has fairly con ceded that if the finding of the High Court on the question of limitation or on the question of the bar pleaded under section 53 was upheld, it would be unnecessary to consider the merits of his argument about the character of the properties in suit.
Since we have reached the conclusion that the High Court was right in holding that the suit was barred under section 5(2) and was also incompetent under section 53 of the Act, we do not propose to decide the question as to whether the properties in dispute are waqf within the meaning of the Act.
The plea of limitation under section 5(2) as well as the plea of the bar under section 53 are in substance preliminary objections to the maintanability or competence of the suit and we propose to deal with these objections on the basis that the properties in dispute are outside the purview of the Act as alleged by the appellants.
Before dealing with the question of limitation, it would be useful to refer to the relevant part of the scheme of the Act.
Section 4 of the Act provides for the survey of waqfs to be made by the Commissioner of Waqfs appointed under sub section
(1) of section 4.
Subsection (3) requires the Commissioner to ascertain and determine inter alia the number of Shia and Sunni Waqfs in the district, their nature, the gross income of the properties comprised in them as well as the expenses incurred in the realisation of the income and the pay of the mutawalli.
The Commissioner has also to ascertain and determine whether the waqf in question is one of those exempted from the provisions of the Act under section 2.
The result of this enquiry has to be indicated by the Commissioner in his report to the State Government under subs.
Section 6 deals with the establishment of two separate Boards to be called the Shia Central Board and the Sunni Central Board of Waqfs.
Section 18 defines the functions of the Central Boards and confers oil them general powers of superintendence over the management of the waqfs under their jurisdiction.
After the Boards are constituted a copy of the Commissioner 's report received by the State Government is forwarded to them and, under section 5, sub section
(1), each Central Board is required as soon as possible to notify in the official gazette the waqfs relating to the particular sect to which, according to the said report, the provisions of the Act apply.
It is after the prescribed notification is issued by the Board that it can proceed to exercise its powers under section 18 in respect of the waqfs thus notified.
It is the notification issued by respondent under section 5 (1) and the subsequent steps taken by it in exercise of its authority that have led to the present suit.
Mr. Dar contends that the provisions of section 5 (2) do not apply to the present suit, and so the argument that the suit is barred by limitation under the said section cannot succeed.
It is clear that the notification was issued on February 26, 1944, and the suit has been filed on October 18, 1946.
Thus there can be no doubt that if the one year 's limitation prescribed by section 5 (2) applies to the present suit it would be barred by time unless the appellants are able to invoke the assistance of section 15 of the Limitation Act.
But, according to Mr. Dar, the present suit is outside section 5 (2) 1297 altogether and so there is no question of invoking the shorter period of limitation prescribed by it.
Let us then proceed to consider whether the present suit falls within the mischief of section 5 (2) or not.
Section 5 (2) provides that: " The mutawalli of a waqf or any person interested in a waqf or a Central Board may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of waqfs to be a waqf is not a waqf, or any transaction held or assumed by him not to be a waqf is a waqf, or that a waqf held by him to pertain to a particular sect does not belong to that sect, or that any waqf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any waqf held by him to be so exempted is subject to this Act.
" The proviso to this section prescribes the period of one year 's limitation to a suit by a mutawalli or a person interested in the waqif.
Sub section (4) of section 5 lays down that the Commissioner of the waqf 's shall not be made a defendant to any suit under sub section
(2) and no suit shall be instituted against him for anything done by him in good faith under colour of this Act.
The appellants ' argument is that before section 5 (2) can be applied to their suit it must be shown that the suit is filed either by a mutawalli of a waqf or any person interested in the waqf.
The appellants are neither the mutawallis of the waqf nor are they persons interested in the waqf.
Their case is that the properties in suit do not constitute a waqf under the Act but are held by them as proprietors, and that the notification issued by respondent I and the authority purported to be exercised by it in respect of the said properties are wholly void.
How can the appellants who claim a declaration and injunction against respondent I on these allegations be said to be persons interested in the waqf, asks Mr. Dar.
The word ' waqf ' as used in this subsection must be given the meaning attached to it by the definition in section 3 (1) of the Act and since the appellants totally deny the existence of such a waqf they cannot be said to be interested in the ' waqf '.
The 1298 argument thus presented appears prima facie to be attractive and plausible; but on a close examination of section 5 (2) it would appear clear that the words " any person interested in a waqf " cannot be construed in their strict literal meaning.
If the said words are given their strict literal meaning, suits for a declaration that any transaction held by the Commissioner to be a waqf is not a waqf can never be filed by a mutawalli of a waqf or a person interested in a waqf.
The scheme of this sub section is clear.
When the Central Board assumes jurisdiction over any waqf tinder the Act it proceeds to do so on the decision of three points by the Commissioner of Waqfs.
It assumes that the property is a waqf, that it is either a Sunni or a Shia waqf, and that it is not a waqf which falls within the exceptions mentioned in section 2.
It is in respect of each one of these decisions that a suit is contemplated by section 5, sub section
If the decision is that the property is not a waqf or that it is a waqf falling within the exceptions mentioned by section 2, the Central Board may have occasion to bring a suit.
Similarly if the decision is that the waqf is Shia and not Sunni, a Sunni Central Board may have occasion to bring a suit and vice versa.
Likewise the decision that the property is a waqf may be challenged by a person who disputes the correctness of the said decision.
The decision that a property does not fall within the exceptions mentioned by section 2 may also be challenged by a person who claims that the waqf attracts the provisions of section 2.
If that be the nature of the scheme of suits contemplated by section 5 (2) it would be difficult to imagine how the mutawalli of a waqf or any person interested in a waqf can ever sue for a declaration that the transaction held by the Commissioner of the waqfs to be a waqf is not a waqf.
That is why we think that the literal construction of the expression " any person interested in a waqf " would render a part of the sub section wholly meaningless and ineffective.
The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a waqf can be challenged by persons who do not accept the correctness of the said decision, and it is, this class of persons who are 1299 obviously intended to be covered by the words "any person interested in a waqf ".
It is well settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute.
In our opinion, on a reading of the provisions of the relevant sub section as a whole there can be no doubt that the expression "any person interested in a waqf " must mean "any person inter ested in what is held to be a waqf ".
It is only persons who are interested in a transaction which is held to be a waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a waqf under the Act.
We must accordingly hold that the relevant clause on which Mr. Dar has placed his argument in repelling the application of section 5 (2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a waqf.
On this construction the appellants are obviously interested in the suit properties which are notified to be waqf by the notification issued by respondent 1, and so the suit instituted by them would be governed by section 5, sub section
(2) and as such it would be barred by time unless it is saved under section 15 of the Limitation Act.
In this connection, it may be relevant to refer to the provisions of section 33 of the Indian Arbitration Act (X of 1940).
This section provides that any party to an arbitration agreement desiring to challenge the existence or validity of an arbitration agreement shall apply to the court and the court shall decide the question on affidavits.
It would be noticed that the expression " any party to an arbitration agreement " used in the section poses a similar problem of construction.
The party applying under section 33 may dispute the very existence of the agreement and yet the applicant is described by the section as a party to the 165 1300 agreement.
If the expression " any party to an arbitration agreement " is literally construed it would be difficult to conceive of a case where the existence of an agreement can be impeached by a proceeding under section 33.
The material clause must therefore be read liberally and not literally or strictly.
It must be taken to mean a person who is alleged to be a party to an arbitration agreement; in other words, the clause must be construed to cover cases of persons who are alleged to be a party to an arbitration agreement but who do not admit the said allegation and want to challenge the existence of the alleged agreement itself.
This liberal construction has been put upon the clause in several judicial decisions: Chaturbhuj Mohanlal vs Bhicam Chand Chororia & Sons Mathu Kutty vs Varoe Kutty (2) ; Lal Chand V. Messrs. Basanta Mal Devi Dayal & Ors.
We may also point out incidentally that in dealing with an application made under section 34 of the Arbitration Act, it is incumbent upon the court to decide first of all whether there is a binding agreement for arbitration between the parties; in other words, the allegation by one party against another that there is a valid agreement of reference between them does not preclude the latter party from disputing the existence of the said agreement in proceedings taken under section 34.
These decisions illustrate the principle that where the literal meaning of the words use& in a statutory provision would manifestly defeat its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative.
Before we part with this part of the appellants ' case it is necessary to point out that the argument urged by Mr. Dar on the construction of section 5(2) is really inconsistent with the appellants ' pleas in the trial court.
The material allegations in the plaint clearly amount to an admission that the Darga and its appurtenant properties constitute a waqf Under the (1) (2) A.I.R. 1950 Mad.
(3) 1301 Act; but it is urged that they do not attract its provisions for the reason that the waqf in question falls within the class of exemptions enumerated in section 2 (ii)(a) and (c) of the Act.
" The Darga waqf ", says the plaint in para.
11, ,is of such a nature as makes it an exception from the purview of the Act as provided by section 2 of the Act ".
Indeed, consistently with this part of the appellants ' case,, the plaint expressly admits that the cause of action for the suit accrued on February 26, 1944, and purports to bring the suit within time by relying on sections 14, 15, 18 and 29 of the Limitation Act.
In their replication filed by the plaintiffs an attempt was made to explain away the admissions contained in the plaint by alleging that " if ever in any paper or document the word I waqf had been used as a routine or hurriedly then it is vague and of no specific meaning and its meaning or connotation is only trust or amanat " ; and yet, in the statement of the case by the appellants ' counsel, we find an express admission that the subject matter of the suit is covered by the exemptions of section 2, cls.
(ii) (a) and (ii) (c).
Thus, on the pleadings there can be no doubt that the appellants ' case was that the Darga and its properties no doubt constituted a waqf under the Act, but they did not fall within the purview of the Act because they belong to the category of waqfs which are excepted by section 2(ii) (a) and (c).
The argument based on the application of section 2 has not been raised before us and so on a consideration of the pleadings of the appellants it would be open to respondent 1 to contend that the appellants are admittedly interested in the waqf and their suit falls within the mischief of section 5 even if the words " any person interested in a waqf " are literally and strictly construed.
The next question which calls for our decision is whether the appellants ' suit is saved by virtue of the provisions of section 15 of the Limitation Act.
That is the only provision on which reliance was placed before us by Mr. Dar on behalf of the appellants.
Section 15.
provides for " the exclusion of time during which proceedings are suspended " and it lays down that " in computing the period of limitation prescribed for any 1302 suit or application for the execution of a decree, the ,institution or execution of which has been staved by an injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded ".
It is plain that, for excluding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit.
And so in cases falling under section 15, the party instituting the suit would by such institution be in contempt of court.
If an express order or injunction is produced by a party that clearly meets the requirements of section 15.
Whether the requirements of section 15 would be satisfied by the production of an order or injunction which by necessary implication stays the institution of the suit is open to argument.
We are, however, prepared to assume in the present case that section 15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation.
But, in our opinion, there would be no justification for extending the application of section 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation.
It is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them: Nagendra Nath Dey vs Suresh Chandra Dey (1).
In considering the effect of the provisions contained in section 15, it would be useful to refer to the decision of the Privy Council in Narayan Jivangouda vs Puttabai (2).
This case was an offshoot of the well known case of Bhimabai vs Gurunathgouda (3).
It is apparent that the dispute between Narayan and Gurunathgouda (1) (2) (1944) 47 Bom.
L. R. I. (3) P.C. 1303 ran through a long and protracted course and it reached the Privy Council twice.
The decision of the, Privy Council in Bhimabai 's case (1) upholding the validity of Narayan 's adoption no doubt led to a radical change in the accepted and current view about the Hindu widow 's power to adopt in the State of Bombay, but this decision was of poor consolation to Narayan because the judgment of the Privy Council in Narayan, Jivangouda 's case (2) shows that Narayan 's subsequent suit to recover possession of the properties in his adoptive family was dismissed as barred by time.
The dispute was between Narayan and his adoptive mother Bhimabai on the one hand and Gurunathgouda on the other.
On November 25, 1920, Gurunathgouda had sued Bhimabai and Narayan for a declaration that he was in possession of the lands and for a permanent injunction restraining the defendants from interfering with his possession.
On the same day when the suit was filed, an interim injunction was issued against the defendants and it was confirmed when the suit was decreed in favour of Gurunathgouda.
By this injunction the defendants were ordered " not to take the crops from the fields in suit, not to interfere with the plaintiff 's wahiwat to the said lands, not to take rent notes from the tenants and not to obstruct the plaintiff from taking the crops raised by him or from taking monies from his tenants ".
Two important issues which arose for decision in the suit were whether Narayan had been duly adopted by Bhimabai in fact and whether Bhimabai was competent to make the adoption.
These issues were answered against Narayan by the trial court.
Bhimabai and Narayan appealed to the Bombay High Court, but their appeal failed and was dismissed: Bhimabai vs Gurunathgouda (3).
There was a further appeal by the said parties to the Privy Council.
The Privy Council held that the adoption of Narayan was valid and so the appeal was allowed and Gurunathgouda 's suit was dismissed with costs throughout.
In the result the injunction granted by the courts below was dissolved on November 4, 1932.
Oil (1) (1932) 35 Bo . L. R. 200 P. C. (2) (1944) 47 Bom.
L. H. I. (3) 1304 November 25, 1932, Narayan and Bhimabai filed their suit to recover possession of the properties from Gurunathgouda.
They sought to bring the suit within time inter alia on the ground that the time taken up in litigating the former suit or at least the period commencing from the grant of temporary injunction on February 25, 1920 to November 4, 1932, when the injunction was dissolved by the Privy Council, should be excluded under section 15 of the Limitation Act.
This plea was rejected by the trial court and on appeal the same view was taken by the Bombay High Court.
Rangnekar J. who delivered the principal judgment exhaustively considered the relevant judicial decisions bearing on the question about the construction of section 15 and held that the injunction issued against Narayan and Bhimabai in Gurunathgouda 's suit did not help to attract section 15 to the suit filed by them in 1932: Narayan vs Gurunathgouda (1).
The matter was then taken to the Privy Council by the plaintiffs; but the Privy Council confirmed the view taken by the High Court of Bombay and dismissed the appeal: Narayan vs Puttabai (2).
In dealing with the appellants ' argument that the injunction in the prior suit had been issued in wide terms and in substance it precluded the plaintiffs from filing their suit, their Lordships observed that there was nothing in the injunction or in the decree to support their case that they were prevented from instituting a suit for possession in 1920 or at any time before the expiry of the period of limitation.
It appears from the judgment that Sir Thomas Strangman strongly contended before the Privy Council that since the title of the contending parties was involved in the suit, it would have been quite futile to institute a suit for possession.
This argument was repelled by the Privy Council with the observation that " we are unable to appreciate this point, for the institution of a suit can never be said to be futile if it would thereby prevent the running of limitation ".
There can be little doubt that, if, on considerations of equity the application of section 15 could be extended, this was pre (1) (2) (1944) 47 Bom.
L. R. I. 1305 eminently a cast for such extended application of the said provision; and yet the Privy Council construed the material words used in section 15 in their strict grammatical meaning and held that no order or injunction as required by section 15 had been issued in the earlier litigation.
We would like to add that, in dealing with this point, their Lordships did not think it necessary to consider whether the prohibition required by section 15 must be express or can even be implied.
There is another decision of the Privy Council to which reference may be made.
In Beti Maharani vs The Collector of Etawah (1), their Lordships were dealing with a case where attachment before judgment under section 485 of the Code of Civil Procedure had been issued by the court at the instance of a third party prohibiting the creditor from recovering and the debtor from paying the debt in question.
This order of attachment was held not to be an order staying the institution of a subsequent suit by the creditor under section 15 of Limitation Act of 1877.
" There would be no violation of it " (said order), observed Lord Hobhouse, " until the restrained creditor came to receive his debt from the restrained debtor.
And the institution of a suit might for more than one reason be a very proper proceeding on the part of the restrained creditor, as for example in this case, to avoid the bar by time, though it might also be prudent to let the court which had issued the order know what he was about ".
In Sundaramma vs Abdul Khader (2) the Madras High Court, while dealing with section 15 of the Limitation Act, has held that no equitable grounds for the suspension of the cause of action can be added to the provisions of the Indian Limitation Act.
It is true that in Musammat Basso Kaur vs Lala Dhua Singh (3) their Lordships of the Privy Council have observed that it would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not ; but this observation must be read in the context of facts with which (1) All. 198, 210, 211.
(2) (1932) I.L.R.56 Mad.
490, (3) (1888) 15 I.A. 211.
1306 the Privy Council was dealing in this case.
The respondent who was a debtor of the appellant had agreed to convey certain property to him setting off the debt against part of the price.
No money was paid by the respondent and disputes arose as to the other terms of the agreement.
The respondent sued to enforce the terms of the said agreement but did not succeed.
Afterwards when he sued for the debt he was met with the plea of limitation.
The Privy Council held that the decree dismissing the respondent 's suit was the starting point of limitation.
The said decree imposed on the respondent a fresh obligation to pay his debts under section 65 of the Indian Contract Act.
It was also held alternatively that the said decree imported within the meaning of article 97 of Limitation Act of 1877 a failure of the consideration which entitled him to retain it.
Thus it is clear that the Privy Council was dealing with the appellants ' rights to sue which had accrued to him on the dismissal of his action to enforce the terms of the agreement.
It is in reference to this right that the Privy Council made the observations to which we have already referred.
These observations are clearly obiter and they cannot, in our opinion, be of any assistance in interpreting the words in section 15.
It is in the light of this legal position that we must examine the appellants ' case that the institution of the present suit had been stayed by an injunction or order issued against them in the earlier litigation of 1940.
We have already noticed that Civil Suit No. 1 of 1940 had been instituted against the appellants with the sanction of the Advocate General for their removal and for the settlement of a fresh scheme.
The appellants were ordered to be removed by the learned trial judge on October 16, 1941; but on appeal the decree of the trial court was set aside on March 7, 1946.
It is the period between October 16, 1941, and March 7, 1946, that is sought to be excluded by the appellants under section 15 of the Limitation Act.
Mr. Dar contends that the order passed by the trial judge on October 16, 1941, made it impossible for the appellants to file the present suit until the final decision of the 1307 appeal.
By this order the appellants were told that they should not in any way interfere with the affairs of the Darga Sharif as members of the committee and should comply with the decree of the court by which they were removed from the office.
It is obvious that this order cannot be construed as an order or an injunction staying the institution of the present suit.
In fact the present suit is the result of the notification issued by respondent I on February 26, 1944, and the subsequent steps taken by it in the purported exercise of its authority under the Act.
The cause of action for the suit has thus arisen subsequent to the making of the order on which Mr. Dar relies; and on the plain construction of the order it is impossible to hold that it is an order which can attract the application of section 15 of the Limitation Act.
We have already held that the relevant words used in section 15 must be strictly construed without any consideration of equity, and so construed, we have no doubt that the order on which Mr. Dar has placed reliance before us is wholly out side section 15 of the Limitation Act.
We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit.
The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely.
We must accord ingly hold that the High Court was right in taking the view that section 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by section 5(2) of the Act.
That takes us to the consideration of the next preliminary objection against the competence of the suit under section 53 of the Act.
Section 53 provides that " no suit shall be instituted against a Central Board in respect of any act purporting to be done by such Central Board under colour of this Act or for any relief in respect of any waqf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office of such 166 1308 Central Board, stating the cause of action, the name, description and place of residence of the plaintiff and 'the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left ".
This section is similar to section 80 of the Civil Procedure Code.
It is conceded by Mr. Dar that if section 53 applies to the present suit the decision of the High Court cannot be successfully challenged 'because the notice required by section 53 has not been given by the appellants before the institution of the present suit.
His argument, however, is that the notification issued by respondent I on February 26, 1944, did not refer to the Darga and offerings made by the devotees before the Darga and he contends that the present suit in respect of these properties is outside the provisions Of section 53 and cannot be held to be barred on the ground that the requisite notice had not been given by the appellants.
We are not impressed by this argument.
Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan e Mughalia and the name of the waqf as Syed Salar Mahsood Ghazi.
In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf.
The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under section 5(1).
In regard to the offerings we do not see bow offerings could have been mentioned in the notification.
They are made from time to time by the devo tees who visit the Darga and by their very nature they constitute the income of the Darga.
It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under section 5(1).
We must, therefore, reject the argument that any of the suit properties have riot been duly notified by respondent I under section 5(1) of the Act.
If that be so, it was incumbent upon the appellants to have given the requisite notice under section 53 before instituting the present suit.
The requirement as to notice applies to 1309 suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf.
It is not denied that the present suit would attract the provisions of section 53 if the argument that the Darga and the offerings are not notified is rejected.
The result is that the suit is not maintainable as a result of the appellant 's failure to comply with the requirements of section 53.
We would accordingly confirm the finding of the High Court that the appellants ' suit is barred by time under section 5(2) and is also not maintainable in view of the fact that the appellants have not given the requisite notice under section 53 of the Act.
The result is that the appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent No. 1, a Central Board constituted under the United Provinces Muslims Waqf Act, 1936, by a notification under section 5(1) Of the Act dated February 26, 1944, took into ' management the properties of a Darga Sharif and on October 18, 1946, the appellants, three of the five members of the Managing Committee of the said Darga Sharif, brought the suit, out of which the present appeal arises, for a declaration that the Darga properties did not constitute a waqf within the meaning of the Act and that the respondent No. 1 had no lawful authority to, issue the notification and assume management of the said properties.
It was urged on behalf of respondent No. 1 that the suit had not been brought within one year as prescribed by section 5(2) of the Act, and was as such barred by limitation; and, that since the notice prescribed by section 53 Of the Act had admittedly not been served on the respondent, the suit was incompetent.
It was found that in an earlier suit, brought with the sanction of the Advocate General, against the Managing Committee for their removal and the framing of a fresh scheme, a decree had been passed against the appellants on October 16 1941, and it directed them not to interfere with the affairs of the Darga as members of the said Committee and to comply with the direction removing them from office.
On appeal the said decree was set aside by the Chief Court on March 7, 1946.
It was contended on behalf of the appellants that section 5(2) Of the Act had no application and even if it had, the suit was within time by virtue of the provisions of section 15 of the Limitation Act.
Held, that the contentions raised on behalf of the appellants must be negatived.
The expression " any person interested in a waqf " used in section 5(2) Of the United Provinces Muslims Waqf Act, 1936, pro perly construed, means any person interested in a transaction that is held to be waqf by the Commissioner of Waqfs appointed under the Act and as such the appellants fell within that category.
Where a literal construction defeats the object of the statute and makes part of it meaningless, it is legitimate to adopt a liberal construction that gives a meaning to the entire provision and makes it effective.
Chaturbhuj Mohanlal vs Bhicam Chand Choroyia & Sons, , Mathu Kutty vs Varoe Kutty, A.I.R. 1950 Mad.
4 and Lal Chand vs Messrs. Basanta Mal Devi Dayal & Ors., , referred to.
Rules of limitation are arbitrary in nature and in construing hem it is not permissible to import equitable considerations, and effect must be given to tile strict grammatical meaning of he words used.
Section 15 of the Limitation Act can be attracted only where a suit has been stayed by an injunction or order and the test would be whether its institution would or would not be an act in contempt of the court 's order.
Nagendra Nath Dey V. Suresh Chandra Dey, (1932) 34 Bom.
R. 1065, Narayan Jivangouda vs Puttabai, (1944) 47 Bom.
L.R. Beti Maharani vs The Collector of Etawah, All. 198 and Sundaramma vs Abdul Khader, Mad. 490, relied on.
Musammat Basso Kaur vs Lala Dhua Singh, (1888) 15 I.A. 211, held inapplicable.
The order of the court in the earlier suit was neither an injunction nor an order of the nature contemplated by section 15 Of the Limitation Act and so that section was inapplicable.
Offerings made from time to time by the devotees visiting the Darga Sharif were by their very nature an income of the Darga, and failure to mention them in the notification under section 5(1) Of the Act, did not render the notification defective.
The provision as to notice under section 53 Of the Act was applicable to suits in respect of acts of the Central Board as well as suits for any relief in respect of the waqf.