RAM NARESH RAI Vs. PHANINDRA BEHARI RAI

JUDGEMENT

(1.) This is an appeal by the D.Hs. arising out of execution proceedings. A preliminary decree for sale on the basis of two mortgage deeds was passed on 28-5-1945. Later a final decree for sale was passed on 9-3-1946. The J.Ds. were six in number including a father & his five sons. It was found by the Court which passed the decree that a partition had been effected between the father & the sons by means of an award which had been made a rule of the Court, prior to the suit on the basis of the mortgages.

(2.) Then the D.Hs. applied for execution of the final decree for sale. The property sought to be sold was zamindari property. The civil Court transferred the execution of the decree to the Collector. It is not clear whether this transfer was made by reason of the provisions of Section 68, Civil P.C., or by reason of the rules framed by the Provincial Govt. under Sections 16 & 17, U. P. Debt Redemption Act. Before the Collector, or rather the Sales Officer, three of the six J. Ds. made an application, claiming the benefit of Section 17, U. P. Debt Redemption Act, 1940. This application was not disposed of on its merits, but was forwarded to the civil Court which had passed the decree for disposal. Thereupon the learned Civil Judge went into the merits of the application & decided that the local rate paid by each one of the six J. Ds. was less than Rs. 25 per annum. He accordingly held that the entire property liable to sale tinder the decree was protected under Section 17 (a), Debt Redemption Act. Thereafter he directed his "finding" as well as the papers to be sent back to the Sales Officer.

(3.) Against the order passed by the learned Civil Judge, the D. Hs. have now come up in appeal to this Court. Before going into the merits of the appeal, learned counsel for the appellants has raised the contention that the learned Civil Judge acted contrary to law in entertaining the application & deciding the question of the protection of land under the provisions of Section 17, Debt Redemption Act. This is the main question which has been argued before us. The argument of the learned counsel for the appellants is that the question of the protection of land from sale under the provisions of Sections 16 & 17 of the Act is a question which has to be decided by the Collector & not by the civil Court which may have passed the decree. In support of his contention learned counsel has relied upon Rules 3 & 4, U. P. Debt Redemption Rules, 1941, framed by the Provincial Govt. under Section 26, U. P. Debt Redemption Act. Rule 3 runs thus :