MAHARAJA PATESHWARI PRASAD SINGH Vs. ADITYA PRASAD

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of proceedings for execution of decree No. 23 of 1933 under Order XXXIV, Rule 5 of the Code of Civil Procedure. The final decree under the aforesaid rule was passed by the Civil Judge, Gonda on 27th February, 1943. Two of the defendants filed Civil Appeal No. 79 of 1943, which was admitted on 10th July, 1943, and notice directed to be issued against the respondents. Later, however, it was reported that there was a deficiency of Rs. 668/8/- in court fee and the appellant was required to make up the same. On 14th November, 1944, the appellant's Counsel made a statement in Court that it was not proposed to matte good the deficiency in court-fee and the appeal was accordingly dismissed "in default of prosecution". It may also be mentioned at this very place that while the appeal was pending, execution proceedings were stayed on 11th November, 1944 (1943?). This interim order was modified on 24th April, 1944. While execution was allowed to proceed, it was directed that the sale of the property would not be confirmed till the decision of the appeal. This stay order was vacated on 17th November, 1944, when the appeal was dismissed.

(2.) The decree-holder took steps for execution of his decree in due course. The application for execution just preceding the one out of which this appeal has arisen was filed on 30th September, 1943. As the property, which was intended to be sold, was ancestral land revenue paying property, execution was transferred to the Collector under Section 68 of the Code of Civil Procedure. The U. P. Debt Redemption Act, XIII of 1940, was in force at the time and Section 16 of the Act regulated the manner in which the land of an agriculturist was to be sold. This Section 16 provided that the land which was intended to be sold, was to be valued in accordance with the provisions of the rules which may be prescribed therefor and the land transferred to the' decree-holder against the valuation so calculated. Section 17 of the Act gave further protection to agriculturists. Sub-section (1) of this section divided the agriculturists into two classes, those who were paying more than Rs. 25/- as local rates, and the rest. In the former case only so much of the land could be sold as was in excess of the one in respect of which the local rates payable came to Rs. 25/-. In the case of agriculturists whose local rates did not exceed Rs. 25/-, the land was not to be sold at all, but a self-liquidating usufructuary mortgage could be granted by the Court to the decree-holder for a period not exceeding 20 years.

(3.) The order of the officer exercising the powers of the Collector in connection with execution of this decree (to be referred to hereafter as the Collector) dated 5th November, 1952, was passed on the basis of an office report of the same date and it indicates that the decree-holder had conceded that the judgment-debtors were paying less than Rs. 25/- as local rates. They, therefore, became entitled to the protection for which provision was made under Section 17, with the result that on 5th February, 1952 a self-liquidating mortgage for twenty years in respect of the entire mortgaged zamiridari property was granted to the decree-holder. The certificate of mortgage was signed by the Collector on 18th June 1952. An application was moved by the decree-holder for delivery of possession over the property on 28th June, 195Z, An order passed the same day indicates that dakhal-dihani was directed to be issued and the order for delivery of possession was even directed to be given dasti to the decree-holder. The subsequent reports in the case Indicate that the warrant for delivery of possession was not taken by the decree-holder. In the meantime the Zamindari ABOLItion and land Reforms Act, 1 of 1951, which had already become the law, was enforced with effect from 1st July, 1952, and all estates vested in the State with effect from that date under Section 4 of the aforesaid Act. ' (3) on 25th February, 1953, therefore, the Collector passed the following order: