BHOLA AND ORS. Vs. JHUNDOO AND ORS.

JUDGEMENT

(1.) THIS execution second appeal raised an important point of law for the decision of which the matter has been placed before this Bench.

(2.) THE facts necessary for the decision of this case, which have been given in my reference order, may briefly be recapitulated here. Jhandu and others, Respondents before us (hereinafter referred to as the mortgagors) represent the original owners of the land in dispute which was mortgaged with possession by their predecessors -in -interest with the predecessors in -interest of Molu, etc. (hereinafter to as the mortgagees). As a result of the proceedings taken by the mortgagors, a final decree for possession by redemption was passed against the mortgagees on 25th of April, 1962. When execution was sought to be taken, objections were raised on behalf of Bhola and others, who are now Appellants before us, claiming that they had been cultivating the land in dispute under the mortgagees for a number of years and were in actual possession as such and that the decree -holder -mortgagors were not entitled to get actual physical possession and were entitled only to symbolical possession as owners. In other words, their claim was that they cannot be dispossessed except in accordance with the existing tenancy laws. The trial Court upheld these objections on the interpretation of Order 21, Rule 35, Code of Civil Procedure , holding that the objector -tenants not being parties to the suit, were not bound by the decree irrespective of the fact whether they can be treated as tenants of the decree -holders or as trespassers. The decree -holders went up in appeal and the learned District Judge, Sangrur, found in their favour and directed warrants to be issued in execution of the decree for actual physical possession of the land in dispute. Before the lower appellate Court, one of the objections raised on behalf of the tenants was that no appeal lay under Section 47 of the Code of Civil Procedure . This was negatived by the Court holding that all questions between the parties to the suit or their representatives and relating to the execution, discharge or satisfaction of the decree can be determined by the Court executing the decree and not by a separate Court. He further held that the word "representative" as used in this section would cover the tenants, who claimed an interest in the property created by the mortgagees -judgment -debtors. On merits, he came to the conclusion, on consideration of the authorities cited before him, that on redemption of the mortgage, the tenancy created by the mortgagees came to an end. The present appeal has been filed by the tenants challenging this order.

(3.) THE real question, however, is as to the effect of redemption on the rights of the Appellants. This requires the determination of the effect of Sections 76 and 111 of the Transfer of Property Act The relevant portions of these sections may be reproduced as follows: