HEMA NANA SIRVI Vs. GAJANAND RAMCHANDRA

JUDGEMENT

(1.) This appeal arises out of execution proceedings of a decree obtained by Ramchandra on 24-3-1949 from the Court of Sub-Judge, Bagod, against Hema for specific performance of a contract of sale of certain agricultural holding. After the death of Ramchandra, the respondents Gajanand and Gangadhar, as his legal representatives, initiated proceedings for the execution of the decree. In those proceedings, Hema raised the objection that the decree could not be executed as the holding in question could not be sold without the previous sanction of the Suba under Section 70 of the Madhya Bharat Land Revenue and Tenancy Act 1950 and this sanction had not been obtained. This objection found favour with the Civil Judge, second class, Burwaha, executing the decree. He held that though at the time of the passing of the decree no sanction of any authority for the sale of the land was required under the Dewas State (Senior) Land Revenue Act, after the coming into force of the Madhya Bharat Land Revenue and Tenancy Act 1950 the holding could not be sold without the previous sanction of the Suba and that no such previous sanction had been obtained. He accordingly held the decree to be inexecutable and dismissed the application for execution of the decree. The decree-holders then appealed to the Court of the District Judge, Mandleshwar. The learned Additional District Judge took the view that the decree was not void ab initio; that, therefore, it was the duty of the executing Court to enforce it; and that the executing Court was not concerned with the question whether the sale required to be validated under Section 70 (2) of the Madhya Bharat Land Revenue and Tenancy ACT 1950. He, therefore, held the decree to be executable and remitted, the case to the executing Court for disposal. The judgment-debtor has now preferred this appeal from the decision of the Additional District Judge, Mandleshwar.

(2.) It is common ground that under the Dewas State (Senior) Land Revenue and Tenancy Act, which was in force at the time of the passing of the decree, no sanction of any kind was necessary for the sale of agricultural lands covered by the decree. The only question that arises for determination is whether under the Madhya Bharat Land Revenue and Tenancy Act 1950 sanction of the Suba for the sale of the land is necessary and whether it not having been obtained the decree is altogether inexecutable. The material provisions of the Madhya Bharat Land Revenue and Tenancy Act 1950 are contained in Sections 70 and 71. Under Section 70, a Pakka tenant's holding can be sold only with the previous sanction of the Suba to a registered co-operative farming society of the same village in which the land is situated or to a bona fide agriculturist, subject to the conditions mentioned in Sub-sections (3) to (8) of Section 70. Sub-section (2) of Section 70 provides for the validation of a sale effected without the previous sanction of the Suba subject to the conditions specified in Sub-section (3) to (8). Section 71 so far as is relevant here, runs as follows :

(3.) It was argued on behalf of the appellant that though under the Dewas State (Senior) Land Revenue Act, which was an force at the time of the passing of the decree, a Pakka tenant's holding could be sold without obtaining any sanction, the rights in the holding could not now be transferred without the previous sanction of the Suba under Section 70 of the Madhya Bharat Land Revenue and Tenancy Act. Learned counsel for the appellant said that the sale of the holding in pursuance of a decree for specific performance of a contract of sale would be a voluntary sale and not a sale in execution of a decree or a sale by the decree itself. In view of the decision of the Privy Council in Motilal v. Nanhelal, AIR 1930 PC 287, learned counsel did not contend that the decree was altogether inexecutable. It was conceded that the executing Court could direct the judgment-debtor to obtain the requisite sanction of the Suba for the sate of the property, or if he failed to take steps for obtaining the sanction, appoint some person for the purpose at the expense of the judgment-debtor.