BIMALESWAR ROUT Vs. CHANDRASEKHAR DHURVA

JUDGEMENT

(1.) In this appeal we are asked to revise an order of the learned Subordinate Judge, Sambalpur, who held that the lands, sought to be attached by the appellants, are not liable to attachment and sale in execution of a decree obtained by them. The respondent is the judgment debtor against whom there are two decrees for money. The decree-holders attached some lands measuring about 3 1/2 acres in extent which are admittedly 'bhogra' lands of the gountia of the village. The judgment-debtor has leasehold interest in them, created by a document dated 15-1-1901. The document itself is not produced and all the information that we got regarding the interest held by the judgment-debtor is from the remarks column of the Khatian, Ext. 1 which says that Shyama Dhuruva, father of the judgment-debtor, was in possession of these lands under a document dated 15-1-1901, on payment of a salami of Rs. 120/- and that he was paying a malguzari of Rs. 4-0-0. The learned Munsif held, relying on a case reported in -- 'Aditya Prasad v. Parmananda Patel', 4 Pat L J 505 that the judgment-debtor was permanent occupancy tenant and as such his interest was attachable and saleable in execution of decree. In other words, he was of opinion that the judgment-debtor's interest was not that of an ordinary tenant, as defined in the C. P. Tenancy Act, On appeal, the learned Subordinate Judge differed from this view and held that the judgment-debtor was an ordinary tenant and that Section 70 (2) of the Act prohibited the sale of his interest in execution of a decree, inasmuch as the document under which he acquired an interest was executed subsequent to the commencement of the Act. The result of this appeal would depend upon a decision as to which of these two views is correct.

(2.) The scheme of the C. P. Tenancy Act shows that it contemplates five classes, of tenants and they are classified in Section 3 of the Act. An ordinary tenant is described, rather than denned, in Section 62, Sub-section (1). It says:

(3.) I agree.