SITA RAM RAI Vs. CHANDRA BHAN MISRA

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree dated 30th September 1980 passed by the Fourth Additional District Judge, Bailia, The relevant facts giving rise to it are as follows:

(2.) THE judgment -debtor preferred an appeal against the aforesaid order of the Execution Court. During the pendency of the said appeal, Act No. 51 of 1975 was repealed by the U.P. Debt Relief Ordinance III of 1977 which came into force on 21st February 1977. The said appeal was decided by the First Additional District Judge, Bailia, by his order dated 5th May 1977. He allowed the appeal of the Appellant and set aside the order of the Execution Court with direction that the execution proceedings against the Appellant remained stayed for a period of one year with effect from 21st February 1977. The appellate court also allowed the application of the judgment -debtor under Section 47 of the Code of Civil Procedure for stay of recovery of debt and stayed the execution as required by the provisions of U.P. Act No. 51 of 1975.

(3.) DURING the pendency of the aforesaid Execution Second Appeal No. 1375 of 1977 in the High Court, the judgment -debtor, however, moved an application dated 20th December 1977 for restitution Under Section 144 of the Code of Civil Procedure in the court of Civil Judge, Baillie on the allegations that objections of the judgment -debtor Under Section 47 of the Code of Civil Procedure for stay of execution proceedings under the provisions of U.P. Act No. 51 of 1975 were rejected. It was further alleged that on appeal preferred against that order, the appellate court set aside the judgment of the Execution Court passed on 5th May 1977 and it was held that the judgment -debtor was a "small farmer" within the meaning of Section 2(11) of U.P. Debt Relief Act of 1977, and as such is a protected debtor. He accordingly allowed the application of the judgment -debtor for the stay of the execution proceedings. It was further alleged by the judgment -debtor in the stay application that in the execution of the decree of the original suit the decree -holder himself purchased the property in pursuance of the court auction and also obtained possession on 29th May 1976. The trial court by its judgment and decree dated 28th March 1979 held that Section 144 of the Code of Civil Procedure was not applicable to the case and it, therefore, rejected the application of the judgment -debtor. Aggrieved against the aforesaid judgment of the trial court, the judgment -debtor preferred an appeal before the lower appellate court. It was argued by the judgment -debtor before the lower appellate court that he is entitled to restitution Under Section 144 of the Code of Civil Procedure because the sale which took place in favour of the decree -holder was null and void being contrary to the provisions of U.P. Act No. 51 of 1975. The further submission made on behalf of the judgment -debtor was that since the objection preferred Under Section 47 of the Code of Civil Procedure was pending before the Execution Court, the Execution Court was not competent to confirm the sale in question. It is pertinent to note that the controversy regarding the continuance of the stay order has already been decided by this Court in Execution Second Appeal No. 1375 of 1977. Thus the result is that the Execution Court was not competent to confirm the sale in view of the continuance of the aforesaid stay order and the pungency of the objection preferred Under Section 47 of the Code of Civil Procedure. The lower appellate court accepted the contentions of the judgment -debtor and allowed his appeal. As regards mesne profits, the lower appellate court took the view that since the decree obtained by the decree -holder against the judgment -debtor in the original suit still exist and no determination of the debt as contemplated by Section 17 of U.P. Debt Relief Act has yet been placed, there arise no question of award of manse profits.