ITHOBA Vs. BHAGCHAND

JUDGEMENT

(1.) THIS is a Letters Patent Appeal fpm a decision of a learned Single Judge of this Court overruling the objection of the judgment -debtors (appellants) and holding that the right of the decree -holders (respondents) to proceed against the property attacked was not affected by section 165 (7) (a) of the Madhya Pradesh Land Revenue Code, 1959, (hereinafter called the 'New Code').

(2.) THE facts of the case may briefly be stated. In execution of a money decree, the decree -holders (respondents) got an absolute occupancy field of the judgment -debtors (appellants) having an area of 2.29 acres attached on 24 -11 -1956. The judgment -debtors from time to time raised various objections which held up the course of execution. On 8 -10 -1958, application for execution was dismissed but the attachment was ordered by the Court to continue on 9 -10 -1958, another execution application was made seeking to have the decree satisfied by the sale of the attached field. The sale notice was served on the judgment debtors (appellants) on 24 -10 -1958. The judgment -debtors again filed an application for postponement of the execution of the decree which was dismissed by the executing Court. Ultimately, the Court fixed 26.12.1559 (for holding the auction sale. On 2.10.1959, the Madhya Pradesh Land Revenue Code, 1959, had come into force. On 5.12.1959, the judgment -debtors filed an objection contending that their absolute occupancy land which had become their bhumiswami land under the provisions of section 146 (1589) of the new Code, could not be sold in execution due to the bar created by Section 165 (7) (a) of the new Code which provides that "only that part of a holding of a bhumiswami shall be liable to attachment or sale in execution of any decree or order as is in excess of five acres of irrigated or ten acres of un -irrigated land". The attached land was irrigated land. It is conceded that when the land was actually attached, there was no law which prohibited the decree -holders from getting the said field attached of getting the attached property sold.

(3.) IT has been contended on behalf of the decree holders that retrospective effect could not be given to the provisions made in Section 165 (7) (i) of the new Code. It was urged that if those provisions wire intended to apply not only to future proceedings but also the pending ones, that could be plainly said.