- (1.) These appeals arise out of two different litigations although some of the parties are the same. Civil Appeal No. 1138 of 1966 is directed against the judgment of the Andhra Pradesh High Court dated February 8, 1963 in a revision petition. The other two cross appeals i.e. 1139 of 1966 and 1140 of l966 arise out of the judgment dated February 1, 1963 passed by the same High Court in a suit which had been filed by the State Bank of Hyderabad on the basis of a promissory note dated November 27, 1953 for recovery of Rs. 70,000/-. We shall dispose of Civil Appeal No. 1138 of 1966 first. The Hyderabad State Bank had filed a suit in July 1956 against the joint family business known as Mukund Das Raja Bhagwandas and Sons and the four sons of Raja Bhagwan Das who had died, the sons having been impleaded as defendants 2 to 5. There was a sixth defendant also Srikishen Sookhdev Malani. According to the claim of the Bank defendants 2 to 5 were members of a joint undivided family defendant No. 2 being the Head Karta and Manager. On February 2, 1951 defendant No. 2 in his above capacity requested the Bank to grant what is called a "clean cash credit" limit of Rs. 1,00,000/- against the guarantee of defendant No 6. Defendant No. 2 was allowed to withdraw a sum of Rs. 99,500/- by three cheques from Feb. 8, 1951 to February 12, 1951. After the confirmation of the cash credit limit by the Committee of the Board of Directors of the Bank on February 22, 1951, defendant No. 2 executed a pronote in favour of defendant No. 6 for the sanctioned limit of Rs. 1,00,000/-. This pronote was endorsed in favour of the Bank and thereafter the sum of Rs. 99,500/- which had been withdrawn pending the sanction of the Committee was debited to the cash credit account opened in the name of defendant No. 1 and credited to the personal account of defendant No. 2. It was averred that defendant No. 2-Karta, Head and Manager-was drawing monies from time to time in the cash credit account of defendant No. 1. The drawing limit was reduced subsequently to Rupees 50,000. On September 3, 1952 defendant No. 2 as Kartha and Manager of joint family business of defendant No. 1 executed a fresh pronote for the reduced limit of Rs. 50,000/- in favour of defendant No. 6 which was endorsed by him in favour of the Bank. Defendant No. 6 also executed a fresh letter of guarantee. On December 28, 1953 there was a balance of Rs. 36,2019-8 in the cash credit account of defendant No. 1 and as collateral security for the same defendant No. 2 executed a fresh pronote in favour of defendant No. 1 the guarantor for Rupees 35,000/- which was endorsed in favour of the Bank. Defendant No. 6 further executed a fresh letter of guarantee in favour of the Bank. Defendant No. 2 had confirmed the amount due under the cash credit account in his letter dated July 7, 1954. On account of this cash credit account a sum of Rupees 40,869-1-10 was due from defendants 1 to 5 as principal debtors and defendant No. 6 also guarantor together with interest. Defendant No. 2 filed a written statement taking up various pleas contesting the claim of the Bank but no objection was raised on the basis of the provisions of the Hyderabad Jagirdars Debt Settlement Act. 1952 which was published in the Official Gazette on March 18, 1952, hereinafter called the ''Act". Defendants 3 to 5 and defendant No. 6 also filed their written statements contesting the claim but no plea was raised on the basis of the provisions of the Act. As many as 10 issues were framed by the learned Fourth Additional Judge, City Civil Court, Hyderabad.
(2.) The suit was decreed by the trial court personally against the 2nd and the 6th defendant and against joint family assets of defendants 2 to 5. In view of the fact that the 6th defendant did not raise any serious contest to the claim it was directed that the plaintiff could proceed in the first instance against the joint family assets of defendants 2 to 5 and person of the second defendant and if the entire sum was not realized then it could levy execution against the sixth defendant. Future interest was awarded at the rate of 51/2% per annum. No appeal was filed against the aforesaid decree. In December l959 the Bank filed an execution petition in the court of the Fourth Additional Judge. On March 10, 1960 the learned Judge passed an order transferring the execution petition to the Jagirdar Debt Settlement Board under S. 25 (1) of the Act. The Bank challenged the order of transfer before. the High Court on the revisional side. The learned singles Judge, who heard the revision petition, referred three questions of law for consideration by a larger bench. The questions referred were as follows: "1. Whether on a true construction of S. 25 (1) of the Act, it has application to suits, appeals and applications for execution and proceedings other than revisional in respect of debts not existing on or before the notified date under Sec. 11 of the Act, pending in any civil or revenue court involving the questions as set out in that section 2. Whether in execution proceedings relating to decrees obtained in suits filed after the notified date, the Court could go behind the decrees passed and trace the history of the transactions which resulted in the liability under the decree 3. If the answer to question (1) is in the affirmative, whether section 25 (1) of the Act has to be struck down as violating Articles 14 and 19 (1) (f) of the Constitution - The first question was answered by the Full Bench in the negative. The second question has also similarly answered and it was held that the executing court was not competent to reopen the case by tracing the history of the transaction which resulted in the liability under the decree. Question No. 3 was not answered. In accordance with the opinion of the Full Bench and on a further consideration of the facts the learned single Judge disposed of the revision petition holding that S. 25 (l) of the Act was not applicable and the order of transfer was liable to be set aside. The executing court was directed to proceed and deal with the execution application in accordance with law.
(3.) It is necessary to notice the historical background and the relevant provisions of the Act in order to decide the questions which fall for determination. By the Hyderabad (Abolition of Jagirs) Regulation passed on August 15, 1949 the jagirs were abolished. The jagirdars were declared entitled to a share in the jagir net income which was inalienable except with the previous sanction of the Government. On January 25, 1950, another Regulation called the Hyderabad Jagir (Commutation) Regulation, 1359F was enacted. It provided, inter alia, for the method of calculating the commutation in respect of jagirs. As pointed out by the High Court the enactment of the Regulation affected the jagirdars in a large measure. Their former resources were not available to them to pay their debts. The creditors were also faced with a difficult situation which affected their prospects of recovering the loans fully. It was in this background that the Act was passed. Its provisions were mainly borrowed from the Bombay Agricultural Debtors' Relief Act, 1947. Debt was defined by S. 2 (e) to mean any liability in cash or kind whether secure or unsecured due from a jagirdar whether payable under a decree or order of a civil court or otherwise. Section 3 provided exceptions in cases of five categories of debts which were not liable to be scaled down. One of those was the debt due to a scheduled bank.;