HARMAL Vs. SPECIAL ADDL DISTRICT JUDGE SAHARANPUR

JUDGEMENT

(1.) THE question involved in this writ petition is whether the bar on transfer of land imposed by section 157-A of the UP ZA and LR Act would enable the judgment debtor to resist delivery of possession of the disputed land in execution proceedings arising out of a decree for specific performance of contract of repurchase.

(2.) HARMAL, the petitioner, is the purchaser of the disputed land from the original tenure-holder Nihala for a sum of Rs 8,800/- with a right of repurchase as convened through Registered sale deed dated 18-1-1968. Nihala transferred the right of repurchase to respondent no. 3 Rashid on 21-7-73 who filed suit no. 31 of 1973 for specific performance of contract of resale which was decreed by the trial court on 8-2-1974, confirmed even In Second Appeal by this Court. Execution Case No. 12 of 1990 commenced on the application by Rashid moved on 21-7-1990 Draft sale deed was prepared which was duly executed and registered in the office of sub Registrar at the behest of the Executing Court. Application moved by HARMAL purporting to be "objection" as envisaged by Order 21 Rule 43 CPC was dismissed. Rashid made an application for delivery of possession through court. Now, an application was filed by HARMAL for recalling of order directing registration of sale on several grounds, one of which was that because of the bar on transfers by a scheduled-caste land-holder created by section 157-A, UP ZA and LR Act, the Court could not have executed and got registered the sale deed. The executing court rejected the said application of HARMAL and allowed the application for delivery of possession by his order dated 21-10-1991 and permitted him to take steps within twenty days. Appeal by HARMAL against this order dated 21-10-1991 having been dismissed on 16-7-1992 he has filed this writ petition under Article 226 of Constitution of India

(3.) IT must be held that the expression "transfer for consideration" in section 100 of the Transfer of Property Act has been used in a wider sense and would include a transfer by act of parties as also by or in execution of a decree and, therefore, should be interpreted to include an auction-purchase in court sale. Therefore section 100, Transfer of Property Act is not excluded from the operation of saving clause (d) of Section 2 of Transfer of Property Act. This interpretation stands fully fortified by the Supreme Court decision in Laxmi Devi v. Mukund, AIR 1965 SC 834. Thus the view of the learned single Judge in Ram Saran v. 1st A D. J. Rampur, 1981 ALJ 794, relied upon by the courts below, it Is submitted with respect, lays down the correct law. IT thus follows that the bar imposed by Section 157-A of UP ZA and LR Act cannot be invoked by the judgment-debtor by saying that sale by the court in execution of the decree of specific performance of contract is not volutary sale by act of parties.