LexKRISHNA PRASAD AND OTHERS versus GAURI KUMAR DEVL
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i962 Sir Cl11111il4l V. M1hla 41 Sons1 Ud. v. Tiu Ct11t111y Spinning 4' M"""fact,,.ing C.. Lid. M ui!rol /w J. IHI Morch 6t> . , . ~ . . . . . . ' ,. SUPREME OOURT REPOR1'S [1962] SUPP. and that is compenation. It does not expreBBly or by necessary implication keep alive the right tu claim damages under the general law. By provi- ding for compensation in express terms the right tu claim damages under the general law is neceBSarily e~cluded and, therefore, in the face of that clause it is not open to tho appellant to oontend that that right is left unaffected. Thero is thus nu substance in the alternative contention put forward by the learned counsel. Accordingly we affirm the decree of the High Com t and dismiss the appeal with cost.a. Appe,al di,siniS&li. KRISli.J.'i"A PRASAD AND .OTHER~ v. GAURI KUMAR! D.EVl (P. B. GA.JK'.SDRAGADKAR, A. K. SARKAR and K. N. w AN CHOO, JJ.) Bxecution-l'eroonal decree against mortgagor-Mortgaged e•late i·eBting in t!.t State-Bjject on claim pendiny-Bihar Land Reform• Act, 19W(Acl 30 oj 1950), s. 4(d). The appcllan t obtaine<l a preliminary decree, on an anomalous mortgage of a ~hare in the Zamindari village of Sonchari Mouza in the Patna lJistrict and khudkasht land appertaining to the Mouza, against the mortgaged properties with a direction for a personal decree for the balance and there followed a final mortgage decr<e on 30.9.1947. An application for execution against the mortgaged properties was dismissed on 9.1.1954 as in the meantime the mortgaged pro· pcrtics \\·hich constituted an estate within the meaning of s. 2(1) of the Bihar Land Reforms Act, 1950, had vested in the State. Execution was sought personally against the mortgagor I . by attachment and sale of other properties of the mortgagor and it was ultimately ordered by the executing <OUJ t. The 3 S.C.R. SUPREME COURT REPORTS 565 Patna High Court in revision hi;ld tha! in· view of s. 4( d) of the Bihar Land Reforms Act, 1950, the execution petition could not proceed and dismissed it. On appeal to this Court it was contended that s. 4(d) of the Act prohibited execution only against the mortgaged pro• perty not in respect of the personal decree. It was brought to the notice of this Court that the appellant had preferred a claim under the Act and that the Claim Officer had deter· mined a sum of Rs. 58,100/. with interest at 4 per cent as payable to the appellant from the compensation payable on abolition of the Estate. Held, thats. 24(5) of the Act made the compensation payable on acquisition of the mortgaged estate a kind of sub. stituted security against which the mortgage claim would be enforced under the provisions of the Act. According to the - Scheme of the Act the debts of the proprietors in respect of the estate were to be investigated and adjusted exclusively by the Tribunal under the Act. On a proper construction, s. 4(d) of the Act precluded the executing Court from enforc. ing the direction for a personal tlecrre. for realising the mort· gage debt at present ; it could only be done eventually if the realisation from the mortgaged property was found insufficient to satisfy the decree, as in the present case the whole of the mortgaged property was an estate, in respect of which a claim w•s pending. - Lion Insurance Association Ltd. v. Tucker ( 1883) 12 Q.B.D. I 76, Raghubir v. Basudevanand, (1953) I.L.R. 32 Pat. 581, Mahantli Sukhdeo Das v. Krtshi Prasad Tiwari, A.I.R. I 958 Pat. 630 and Rana Sheo Ambar Singh v. The Allahabad Bank Ltd .. (1962) 2 S.C.R. 441 referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 352 of 1959. Appeal from the judgment and decree dated January 8, 1957, of the Patna High Court in Civil Revision No. 590 of 1955. L.K. Jha and B. P. Jha, for the appellants. Sarjoo Prasad and R. a. Prasad, for the respon- dent. 1962. March 5. The Jqdgment .of tl1e Coqrt \f!!,~ delivorad by· 1962 Kri1hntJ Prasad v. Gauri ~umari Deni 1962 Kris1ma Prosad v. Gauri Kumari Dtri Gaj111dratadk.1r J, 566 SUPREME COURT REPORTS [1962) SUPP. GAJEXDRAGADKAR, J.-This appeal has been brought to this Court with a eertificaro issued by the Patna High Co•irt and it raises as short question about the scope and effect of the provisions of section 4(d) of the Bihar Land Reform Act, 1950 (30 of 1950) (hereinafter called the Act). The res- pondent Smt. Gauri Kumari Qcvi along with her husband, Rabu Shyamakan
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