BRAHMJIT SINGH Vs. MAHENDRA SINGH

JUDGEMENT

(1.) The present execution second appeal' has been filed by the decree-holder on order passed by the lower appellate court dismissing his execution-application and upholding the objection of the respondent, filed under Sec. 47 of the Code of Civil Procedure. The facts are that the plaintiff-decree-holder obtained a decree for sale of the plots mortgaged by the defendant with him. A final decree under Order 34 Rule 5 was passed on 10-4-70. The objection was filed by the judgment-debtor-respondent under Sec. 47 of the Code of Civil Procedure. He alleged that consolidation has taken place in the village and the chaks had been carved out in the year 1958. In his objections dated 18-11-1970, he alleged that the consolidation had finished in the village about 8 or 9 years ago. Under the circumstances, the decree-holder should have taken steps in the consolidation proceedings, and the decree was a nullity. From the objections mentioned above, it is clear that the consolidation operations finished in the village either in 1961 or in 1962. At that time, Sec. 30 of the U. P. Consolidation of Holdings Act, as it stood, applied and according to that section, all rights, title, interests and liabilities in the original plot of a tenure holder stood extinguished, and stood transferred in the plots allotted to him. Learned counsel for the respondent relied upon Sec. 30 as it stood prior to the enforcement of U. P. Act No. 8 of 1963. He argued that the encumbrances could only be transferred to the corresponding holding in the consolidation scheme, if the same was got recorded in the Col. 17 of C. LI. Form 23 (Part II). I am afraid, this argument has no force. In case, the tenure-holder concerned wanted the encumbrance's to be limited to any particular portion of the plots allotted to him, he could have moved the Assistant Consolidation Officer, who determined such part at the time of the preparation of the Scheme. He having not chosen to do so, the incumbrance's have been transferred to the entire holdings, under Sec. 30, allotted to him. The lower appellate court relied upon Sec. 30 clause (e) of the said Act, holding that the proceedings under that clause should have taken by the decree-holder, only then he could have right to proceed under the substituted plots. As already pointed out, Sec. 30 clause (e) did not exist at the time when the consolidation operations were carried out in the village. Sec. 30 as prior to enforcement of U. P. Act No. 8 of 1963, could apply.

(2.) In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside and that passed by the trial court is restored with costs throughout. Appeal allowed.