SURAJ BALI KOERI Vs. BACHCHA PANDEY AND OTHERS

JUDGEMENT

(1.) THE Appellant in 1932 executed a simple mortgage in respect of his fixed rate tenancy land in favour of the Respondent. The Respondent sued to enforce the mortgage and in 1949 obtained a final decree for sale of the mortgaged property from the court of a Munsif. It is admitted between the parties that the property was protected land of the Appellant. The Respondent then put the decree into execution in the court of the Munsif on 15 -4 -52 and made an application himself that since the mortgaged property was protected land of the Appellant the decree be transferred to the Collector for execution of a self liquidating usufructuary mortgage in his favour. Consequently the Munsif transferred the decree to the Collector for execution of the decree through execution of a self liquidating usufructuary mortgage. Before such a mortgage could be executed the ZA and LR Act came into force on 1 -7 -52, whereupon the Respondent made an application to the Munsif for amending his execution application by seeking execution of the decree by sale of the mortgaged property in the court of the Munsif himself. The Munsif allowed this amendment without hearing the Appellant. When the Appellant came to know of it he filed an objection in his court contending that the amendment was allowed behind his back and denied that the provision of Section 17 of the Debt Redemption Act under which a self -liquidating usufructuary mortgage could he executed by the Collector, stood impliedly repealed by the provisions of the ZA and LR Act. He contended that the land continued to be protected and could not be sold in execution of the decree. His application was rejected by the Munsif, who was of the opinion that Section 17 of the Debt Redemption Act was impliedly repealed by Section 339(b) of the ZA and LR Act and that consequently the decree could be executed not Under Section 17 of the Debt Redemption Act but by sale of the mortgaged property as in an ordinary case. His view was upheld on appeal by the District Judge and the Appellant comes up in second appeal before us.

(2.) THE case was heard by Upadhya J. who considered that an important question of law was involved and referred it to a larger Bench. We do not agree with the courts below that Section 17 of the Debt Redemption Act is inconsistent with the provisions of Ch. VIII of the ZA and LR Act. Sri G.P. Singh referred to the provisions of Ch. VIII of the ZA and LR Act. Sri G.P. Singh referred to the provisions of Ss. 152, 155 and 164 in Ch. VIII of the ZA and LR Act and pleaded that they were inconsistent with Section 17 of the Debt Redemption Act. The provisions are to the effect that the interest of a bhumidhar is transferable subject to the conditions mentioned in that Chapter, that:

(3.) THE Appellant is a Bhumidhar and the argument of the Respondent is that if the court executes a self liquidating mortgage Under Section 17 of the Debt Redemption Act it would be hit by the provisions of Section 155 of the ZA and LR Act. We are unable to accept this argument because we consider that Section 155 prohibits a Bhumidhar from mortgaging his land and does not prohibit a court from executing a self -liquidating mortgage. Section 155 deals with the right of a Bhumidhar to mortgage his right and has nothing to do with the jurisdiction conferred upon a court by Section 17 of the Debt Redemption Act to execute a self -liquidating usufructuary mortgage. When the court executes such a mortgage it cannot be deemed for purposes of Section 155 to have been executed by the Bhumidhar himself and, therefore, the consequences that arise when a Bumidhar executes a mortgage in contravention of the provisions of Section 155 of the ZA and LR Act will not arise. Section 164 deals with a case in which a Bhumidhar himself executes a mortgage, and does not govern a case in which a court executes a self liquidating mortgage Under Section 17 of the Debt Redemption Act. Consequently it cannot be said that the provisions of Section 17 of the Debt Redemption Act are inconsistent with those of the ZA and LR Act and that the former stand repealed by virtue of Section 339(b). No other ground for the alleged inconsistency was pointed out to us.