BHAWANI SHANKAR WAMAN SAUNSHI Vs. GIRIDHAR RANGANATH KULKARNI

JUDGEMENT

(1.) This appeal is by the decree-holders against the decree passed by the Civil Judge at Hubli in Civil Appeal No. 101 of 1965 reversing the decree passed by the Munsiff at Hubli in L. D. No. 224 of 1962. The appellants obtained a money decree against the father of the respondents for a sum of Rs. 9,317/- from the Court of the Munsiff at Dharwar.. The decree-holders prayed for transfer of the decree to the. Court of the. Munsiff, Hubli for purposes of execution. At the instance of the decree-holders, the properties bearing C. T. S. Nos. 1492/A. 1492/B and 1492/C were attached. When the decree-holders sought to bring those properties to sale, the respondents objected to the same on the ground that the properties cannot be sold in view of the bar contained in Section 4 (2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950. That objection of the respondents was ruled out by the executing Court by its order dated the 17th of April. 1965. That decision was challenged by the judgment-debtors in Civil Appeal No. 101 of 1965 in the Court of the Civil Judge at Hubli. During the pendency of the appeal, the decree-holders made an application I. A. No. IV and sought permission of the Court to seek the permission of the Deputy Commissioner for and on behalf of the Court for the sale of the aforesaid three properties in execution of the decree obtained by them. That application was rejected and the decree passed by the executing Court was set aside. It was held by the learned Civil Judge that the attachment of the properties in question is invalid. Hence this execution second appeal by the decree-holders.

(2.) It appears to me that the view taken by the Court below that the attachment of three properties in question is invalid, is not in accordance with law. It is no doubt true that the properties in question constituted 'Watan' under the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950. It is also not disputed that under Section 4 of the said Act these three properties were re-granted to the judgment-debtors. It is also not possible to dispute that when the properties are so re-granted under Section 4, the provisions of Sub-section (2) of Section 4 of the Bombay Paragana and Kulkarni Watans (Abolition) Act. 1950 are attracted. Section 100 of the Mysore Land Revenue Act. 1964, which is similar to Section 70 of the Bombay Land Revenue Code, has a bearing on this question and reads as follows:--

(3.) It is clear from Clause (b) of Section 100 that the Court is required to raise the attachment or other process placed on or set aside any sale of the property which cannot be transferred without the previous sanction of the Deputy Commissioner. Only when the Court receives a certificate under the hand and seal of the Deputy Commissioner to the effect that such occupancy is not transferable without the previous sanction of the prescribed authority and that such sanction has not been granted. Section 4 (2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 does not contain an absolute bar against transfer of property which has been granted under Sub-section (1) of Section 4. It is, therefore, not possible to take the view that the property regranted under subsection (1) of Section 4 is not transferable at all. All that can be said is that the transfer is permissible if the prescribed conditions specified in Section 4 are satisfied. Those conditions are that prior permission of the prescribed authority should be taken for transfer and the necessary amount ordered should be paid. The combined effect of Section 4 (2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 and Section 100 of the Mysore Land Revenue Act. 1964 is that the court is not precluded from attaching the property re-granted under Section 4 (1) unless end until the certificate contemplated under Clause (b) of Section 100 is received by the Civil Court. It is not the case of the judgment-debtors that any such certificate was issued by the Deputy Commissioner much less that any such certificate was produced before the executing Court. It is therefore, an error to hold that the attachment of the properties in question in the present case is invalid merely on the ground that the properties attached are those which have been regranted under Section 4 (1) of the Bombay Paragana and Kulkarni Watans (Abolition) Act,1950.