TUKARAM ZIPRU WANI Vs. BABAN DHONDU DESHMUKH

JUDGEMENT

(1.) THIS petition arises out of an execution proceeding commenced by the petitioner against his judgment -debtor respondent No, 1.

(2.) RESPONDENT No. 1 was the owner of two lands survey numbers 204 and 221, measuring 6 acres 15 gunthas and 6 acres 4 gunthas, in the village of Bhadgaon in Jalgaon District. He held these lands as Class V Inam. In 1950, the Bombay Paragana and Kulkarni Watans (Abolition) Act was passed, as a result of which the lands became resumed by the Government. They were retransferred to respondent No. 1, on his paying occupancy price equal to twelve times the amount of the full assessment. The petitioner obtained his decree in Regular Suit No. 57 of 1950 and sought to proceed in execution against these two survey numbers by attachment and sale of the properties in Darkhast No. 218 of 1958. Respondent No. 1 contended that these lands could not be sold as they were re -granted to him on limited tenure and were inalienable under the provisions of Section 4, Sub -section (2) of the Act without the permission of the Collector for the transfer of the same. The learned Civil Judge, Junior Division, by his judgment and order dated April 1, 1960, directed the sale of the properties to proceed, deferring the matter of obtaining the permission of the Collector to a later date. Respondent No. 1 went in appeal to the District Court, being Appeal No. 185 of 1960. The learned District Judge by his judgment dated June 15, 1961, set aside the order of the Civil Judge, Junior Division, and held that the properties could not be sold as no sanction of the Collector was obtained. The petitioner filed a second appeal, being Second Appeal No. 1463 of 1961 which was heard by V.S. Desai J. on February 1, 1963. The learned Judge set aside the judgment of the District Judge and restored that of the Civil Judge, Junior Division, holding that the question of sanction could arise only after the sale was effected and before it was confirmed. He directed the learned Civil Judge, Junior Division, to proceed with the execution of the decree from the stage at which it was left.

(3.) SECTION 4, Sub -section (2), of the said Act is as follows : The occupancy of the land regranted under Sub -section (1) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine. Section 70 of the Land Revenue Code which has got a bearing on this question is as follows: In any case where an occupancy is not transferable without the previous sanction of the Collector, and such sanction has not been granted to a transfer which has been made or ordered by Civil Court or on which the Court's decree or order is founded, (a) such occupancy shall not be liable to the process of any Court, and such transfer shall be null and void, and (b) the Court, on receipt of a certificate under the hand and seal of the Collector, to the effect that any such occupancy is not transferable without his previous sanction and that such sanction has not been granted, shall remove any attachment or other process placed on or set aside any sale of, or affecting, such occupancy.