RADHEY LAL Vs. HAUSILA BUX SINGH

JUDGEMENT

(1.) This is an appeal by Radhey Lal and Ram Lakhan Lal against an order passed by the Special Judge, First Grade, Bahraich, rejecting an application under Section 11, Encumbered Estates Act, by the appellants claiming that they had become owners of the property in suit and the landlord-applicants were no longer owners of the same. There was a decree for money in favour of the appellants against the landlord-applicants and in execution of the decree the question arose of transfer of some land belonging to the landlord-applicants. On 30-1-1936, an order was passed under Section 5, Regulation of Sales Act (20 of 1934), the decree-holders having exercised the option of realising the decree by sale of the agricultural-land. The Assistant Collector passed an order on 301- 1936, in those terms :

(2.) The question, therefore, is whether the order dated 30-1-1936, effected a transfer of title in the property from the judgment-debtors to the creditors; if so the subsequent order of 16-3-1936, under Section 6, Encumbered Estates Act, could not affect the same. In case, however, the order of 30-1-1936, did not effect a transfer of title in the property then the landlord-applicants were still the owners of the property on 16-3-193G, and all subsequent proceedings relating to the transfer and the execution of the decree should have remained stayed under Section 7 of the Act.

(3.) Learned counsel for the appellants has urged that the order dated 30-11936, was intended to effect a transfer and did, as a matter of fact, transfer the interest in the property. The point is, however, covered by series of decisions of the Allahabad High Court and the Oudh Chief Court. The two cases mentioned in the judgment of the lower Court are: Ram Chandra Rai v. Chandi Prasad, A. I. R. 1942 ALL 224 and Noor Mohammad v. Ikram Husain, 1946 Oudh App. 193. Both these cases clearly cover the point. There are a number of other cases which learned counsel have cited. It is not necessary for us to give a reference to them. It is, however, admitted that the views of the High Court and that of the Chief Court were the same and both the Courts have consistently held that an order under Section 5 did not effect a transfer of interest in the property: