M.C. Desai, J. - (1.) This is an appeal by a decree holder whose application for execution has been dismissed by the lower court on the ground that the decree itself is wiped off. Nazir Hasan mortgaged certain property with the Appellant and died leaving two sons Kazim Ali Respondent No. 1 and Hamid Ali and one daughter Aziza Khatun Respondent No. 2. Hamid Ali alone applied under Sec. 4 of the Encumbered Estates Act and the Appellant filed a claim on the foot of his mortgage. The Special Judge, after impleading the Respondents as parties, apportioned the mortgage debt between Hamid Ali the debtor applicant and his brother and sister, the debtor non -applicants. Hamid Ali's share was fixed at 2/5, while the share of the Respondents was fixed at 3/5. By virtue of this apportionment the Appellant became entitled to recover from the Respondents 3/5 of the mortgage debt due to him and accordingly filed a suit against them and got a final decree, for 3/5th share in the mortgage debt. Subsequently this Court quashed the proceedings under the Encumbered Estates Act at the instance of Hamid Ali. Thereafter the Appellant applied for execution of his decree against the Respondents. The Respondents objected to the execution on the ground that on account of the quashing of the proceedings under the Encumbered Estates Act the apportionment proceedings were rendered a nullity and so also the decree passed on the basis of the apportionment order and that it could not be executed. The objection prevailed with the lower court which dismissed the application for execution.
(2.) The view taken by the lower court cannot be supported at all. It is true that the proceedings taken under the Encumbered Estates Act had been quashed, but it does not follow necessarily that the proceedings in the suit instituted by the Appellant and the decree passed in their suit are also quashed. Unless the decree stands quashed, it was not open to the lower court to go behind it and refuse to execute it on the ground that it did not exist any longer. Before, the Encumbered Estates Act came into force it was open to the Appellant to recover the entire mortgage debt from any of the three heirs of Nazir Hasan. He was not bound to sue all of them; he could sue any of them singly for the whole debt. The Encumbered Estates Act simply curtailed this right by providing that if one of the joint debtors applied under Sec. 4, the creditor could recover from him only that amount that was apportioned to him and from the non applicant debtors only that amount that was apportioned to them. The quashing of the proceedings under the Encumbered States Act simply restores the original right of the creditor. If the proceedings had not been quashed the Appellant would have been entitled to recover from the Respondents only 3/5 share in the mortgage debt. Before the passing of the Encumbered Estates Act he was entitled to recover from them the whole mortgage debt. The effect of the quashing of the proceedings is that his original right is restored to him and he can recover the whole mortgage debt from them. What he actually got under the decree is less than what he could have got if the proceedings under the Encumbered Estates Act had not been taken at all by Hamid All. When on account of the proceedings being taken he has got less than what he would have got if the proceedings had not been taken, the quashing of the proceedings cannot have the effect of quashing even the less that he has got. Of course it can be said that if the proceedings had not been taken, he would have been obliged to prove his claim in full in a competent civil court and that on account of the proceedings having been taken, he had only to produce in the competent civil court a copy of the Special Judge's order or decree; but we do not think that this makes any difference because if he did not have to prove his claim in the civil court, he had to prove it in the court of the Special Judge.
(3.) Only the proceedings under the Encumbered Estates Act have been quashed. The proceedings in which the Appellant obtained the decree against the Respondents were certainly not proceedings under the Act; they were proceedings under the Code of Civil Procedure and they have not been quashed. Nor is there any provision under which those proceedings could be reopened. On account of the proceedings under the Act being quashed, the Special Judge's order apportioning 3/5 of the debt to the Respondent became a nullity. That order was the immediate basis of the decree under execution. It cannot be argued that on account of the quashing of the proceedings the very foundation on which the decree was passed vanished and that consequently the decree could not remain in force. Though the immediate basis vanished, the real foundation, which was the mortgage debt for which the Respondents and Hamid Ali were jointly and severally liable, remained and could support the decree. In any case, if the legislature intended that the quashing of the proceedings should have the effect of quashing of decrees passed on the basis of apportionment orders of Special Judges, it should have made a specific provision to that effect and it was not open to the lower court to hold that the decree stood quashed when the Act contains no provision, which could be interpreted to mean that the decree stood quashed. The words "proceedings under the Act" could not have possibly meant the decree and to say that the effect of the quashing of the proceedings was to render the decree null and void is nothing but judicial legislation.;