KOKSINGH Vs. DEOKABAI

JUDGEMENT

(1.) One Deojibhai executed a sale deed on 30-12-1950 in respect of the property in question in favour of the appellant for a sum of Rs.12,000/-. No part of consideration was paid at the time of the execution of the sale deed. The appellant promised to pay the amount by 21-5-1951 and covenanted that in case of non-payment, the amount due would be a charge upon the property sold. After the execution of the sale deed, the appellant was put into possession of the property and he paid Rs.3,100/- in three instalments. Deojibhai died in 1955 leaving his widow, the respondent and a son who died subsequently leaving his widow Manibai. Manibai filed a suit in 1956 in the Bombay City Civil Court against Deokabai, the respondent claiming a share in the property left by her father-in-law. Deojibhai This suit was compromised and Deokabai was appointed receiver of the estate of Deojibhai with a direction by the Court to realise his assets and to pay a certain amount to Manibai. Deokabai the respondent, filed the suit from which the appeal arises on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest.

(2.) The appellant contended that the charge could not be enforced against the property as it formed part of his occupancy holding and that besides the sum of Rs.3,100 he had made other payments totalling Rs.9,500/-. The trial Court found that no decree could be passed for enforcing the charge against the property as it was held in occupancy right by the appellant, but the Court gave a personal decree against the appellant for Rs.21,375/-. The appellant appealed against the decree to the High Court. The Court found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis, but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation. In other respects, the decree of the trial Court was confirmed. It is against the decree that the present appeal by certificate has been filed.

(3.) Two points were taken on behalf of the appellant. One was that the Court was not competent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant.This contention was negatived by the High Court on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed. We think the High Court was right in its conclusion as Section 12 of the Central Provinces Tenancy Act, 1920 which contained the prohibition had been repealed before the decree was passed.