KISHANCHAND SHARMA PANDIT Vs. RANI BAHU

JUDGEMENT

(1.) THIS appeal under the Letters Patent is directed against an affirming order of the learned single Judge by which he dismissed an application of Kishan Chand Sharma, judgment -debtor No. 28, under section 47 of the Code of Civil Procedure raising the following two contentions :

(2.) THE facts of this case in so far as they are necessary for disposal of this appeal may be briefly stated. By two deeds dated 4th September 1924 and 30th June 1927, Chaturbhuj and Sewaram, the then proprietors of village Jarwans, created two successive simple mortgages in favour of Pyarelal, Ramlal and Motilal. Subsequently, contrary to the express covenant in the second mortgage deed, the mortgagors alienated Kkudkasht and chhota ghas lands of the village in favour of numerous persons (judgment -debtors Nos. 3 to 36). Kishan Chand Sharma obtained by a registered patta dated 22nd August 1936 a lease for chhota ghas plots khasra Nos. 3/1, 5 and 7/1, area 130 acres, rental, Rs. 65, for a consideration of Rs. 480 and thereby became an occupancy tenant of the plots. Motilal and the successors -in -interest of the other mortgagees filed Civil Suit No. 5 -A of 1943 on the foot of the two mortgages and secured on 1st April 1946 a preliminary decree for sale against the mortgagors and their aliened. Kishan Chand Sharma filed First Appeal No. 59 of 1946 against the decree and contended inter alia that, in view of section 43 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter called the Abolition Act), his occupancy lands could not be sold in execution of the decree. That contention was not accepted and the appeal was dismissed on 19th January 1954.

(3.) WHEN the Abolition Act came into force, the decree -holders and the judgment -debtors made separate applications for settlement of the debt under section 19 of that Act. By a common order dated 22nd March 1952, the decretal amount was reduced from Rs. 48,891 -3 -0 to Rs. 39,615, the amount of compensation Rs. 6,594 -6 -0 was directed to be paid to the creditors and the remaining amount of Rs. 33,020 -10 -0 was declared to be a charge on the property specified in the order.