ARETHIA SAVA VISHRAM Vs. MALI HARI BHUVA

JUDGEMENT

(1.) This is an appeal against the order of the learned District Judge dismissing the appeal of the appellant against the order of the Second Additional Sub-Judge Rahpar in Execution Application No. 41 of 1956 holding that the execution application filed by the respondent was maintainable and should proceed according to law. The appellant who was the creditor of the respondent-debtor obtained an award in his favour under the Bombay Agricultural Debtors Relief Act on 16th February 1955. The award provided that on payment of the amount awarded the appel- lant should deliver possession of the mortgaged field to the respondent- debtor The respondent paid the amount and demanded possession of the field and then applied in execution of the award to get possession of the mortgaged field. Thereupon the appellant raised various objections to the application in execution and the main ground of his objection was that award which was sought to be executed was not registered and that there- fore the execution application filed by the respondent was not tenable. This objection was upheld in appeal in which it was held that in absence of registration of the award the execution application filed by the respon- dent was not maintainable. The respondent then got the award registered and sought to prosecute his execution application. The appellant again raised objections which were rejected by the learned Second Additional Sub-Judge Rahpar by his order dated 20th February 1958. Civil Appeal No. 51 of 1958 filed by the appellant in the Court of the District Judge against the order of the first Court was dismissed by an order dated 16 June 1958. It is against this order of the learned District Judge that the present appeal is preferred by the original creditor.

(2.) Mr. D U. Shah appearing on behalf of the appellant raised two points in support of his appeal:

(3.) Mr. Shahs second contention was based on the amendment of the Bombay Agricultural Debtors Relief Act contained in the Government of India Notification dated 2nd June 1954 by which the Central Govern- ment amended the Bombay Agricultural Debtors Relief Act in its applica- tion to Kutch. A proviso has been added to sub-clause (5) of sub-sec. (2) of sec. 32 that If any land is mortgaged by a landlord by way of usufructuary mortgage to a tenant cultivating such land the court shall not pass an order for the delivery of such land except with the consent of the tenant who shall otherwise continue to hold the land under the terms and conditions on which he held the land before. Mr. Shah argued that in view of this proviso the award which provided for the delivery of possession of the mortgaged land was illegal because it contravened the mandatory direction given in the proviso that the Court shall not pass an order for the delivery of such land as was referred to in the proviso except with the consent of the tenant who shall otherwise continue to hold the land under the terms and conditions on which he held the land before. Mr. Shahs contention was that the proviso on which he relied was an embargo on the powers of the Court while passing the decree and that it curtailed the powers of the Court which were vested in it under sec. 32 of the Act and since the provision in the award for handing over possession of the mortgaged land contravened the proviso to sub-clause (5) of sub-sec. (2) of sec. 32 the award passed by the Court was without jurisdiction and the decree and the award could not be executed as a decree of the Court. But while making this argument Mr. Shah assumed that the proviso was applicable to the facts of the case which were before the Court at the time when the award was passed. Before deciding that the Court which passed the award should not have directed delivery of possession of the mortgaged land it should be found as a matter of fact that the mortgagee was the tenant of the mortgagor prior to the creation of the mortgage This is entirely a question of fact and this question was never raised before the Court which passed the award nor before the executing Court in which execution was sought for the first time by the debtor or an award prior to its registration. There is nothing on the record to show that the creditor mortgagee was already a tenant of the debtor in respect of the mortgaged field before he became a mortgagee. This question therefore cannot be agitated in these execu- tion proceedings. The second contention of Mr. Shah must therefore fail. Appeal dismissed.