RAM KAUR Vs. JANGI

JUDGEMENT

(1.) This is a decree holder's second execution of decree appeal. The appellant held a decree dated 22-2-1959 against the respondent under Sec. 202 of the U.P. Zamindari Abolition and Land Reforms Act. The decree was put in execution but the respondent having obtained a stay order from the court of the District Judge, Lucknow proceedings were stayed. On 11-5-1960 the appellant made an application that inasmuch as the appeal in which the stay order was passed by the learned District Judge having been decided, the execution application should proceed. On 8-6-1960 the execution ordered the execution to proceed. On 10-6-60 a warrant of possession over the land in dispute was issued and possession of the same was delivered to the appellant on 11-6-1960. An objection purporting to be under Sec. 47, C.P.C. was then filed by the respondent to the effect that inasmuch as the village in which the land, the possession of which was delivered, (hereinafter referred to as the land in question) was situate in village Merhua, Pergana Bhopamau, district Hardoi in respect of which a notification under Sec. 4 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) had been issued on 27-2-1960, the execution was incapable of being proceed with and should have been stayed under Sec. 5 of the Act. The executing court (the learned Assistant Collector), dismissed this objection. An appeal against this decision was filed in the court of the district Judge, Hardoi which was heard by the learned Civil Judge who, on 14-9-1961, allowed the appeal as also the objection filed by the respondents with costs. It is against that order that the present appeal has been filed.

(2.) The sold question for determination is whether Sec. 5 of the Act requires that even the execution of a decree should remain stayed ruing the pendency of the consolidation of the holding proceedings. Sec. 5 of the Act, in so far as relevant of our purposes reads:

(3.) It is contended that Sec. 5 of the Act requires stay of all suits for declaration of rights and interest over land or for possession of land or for partition whether in the court of first instance or in appeal or reference or revision and of all proceedings for correction of records. The argument is that execution proceeding is neither a suit nor a proceedings for correction of records and for that reason it is not hit by Sec. 5 of the Act. The lower appellate court was of the opinion that execution of decree for possession "...amounts to proceedings for possession of land and so the same should have been stayed." The learned Judge did not go into the question that is raised before me, i.e., that the proceeding relating to possession of land must be a suit and not any other proceeding. The learned Civil Judge seems to have taken the view that the words "all proceedings" in clause (b)(i) of Sec. 5 of the Act relates not only to proceedings for correction of records but also to proceedings for declaration of rights and interest over land or for possession of land or for partition. In my judgment, it is difficult to put the words "all proceedings" occurring in Sec. 5 (b)(i) of the Act to that use and it appears to me that those words have reference only to proceedings for correction of records and no other proceedings. The question, however, that requires consideration is whether the word "suits" occurring ion Sec. 5 of the Act comprehends in execution application also.