PALTU Vs. JOTI PRASAD

JUDGEMENT

(1.) This is judgment-debtor's appeal in a suit for redemption. There was one Daulat who had mortgaged four specific sir plots to one Shera on 27-2-1006. It was an usufructuary mortgage. After the execution of the mortgage Daulat executed a sale deed of his rights of redemption of these four plots to one Harnam on 14-4-1909. Hamam again sub-mortgtged these rights of redemption to one Nagina and others on 20-4-1910. Harnam's rights of redemption were put in auction and were purchased by the res-pondent Jyoti Prasad in a court auction. Nagina and others redeemed the mortgage and by partition among themselves Nagina got this property. The respondent thereafter filed suit No. 359 of 1950, for redemption of mortgage and obtained a decree against the appellant on 18-9-1951. Thereafter the decree for redemption was put in execution on 19-5-1952 for possession of the specific Plots. When this decree was put in execution there were objections filed by the appellant on the ground that by virtue of the coming into operation of the U. P. Zamindari Abolition and Land Reforms Act the respondent was not entitled to possession and had no right of execution of the decree.

(2.) The first court upheld the objections. The lower Court rejected the objections; therefore this second appeal.

(3.) Learned counsel for the appellant has argued that by virtue of Section 4 of the U. P. Zamindari Abolition and Land Reforms Act since the mortgage was of the Zamindari property, the respondent had no right to redeem and that the decree had become infructuous and the only person that could execute the decree is the State. The second ground on which the decree of the lower appellate court is challenged is that by virtue of Section 16 the mortgagee being the occupant and that having been recorded in 1359 Fasli as the occupant he is not entitled to be dispossessed. Thirdly, reliance was placed on Section 3 of Act XXXI of 1952 of the Uttar Pradesh Land Reforms (Supplementary) Act, 1952, which is in the following words: