SADASHIV PANDURANG Vs. NAMDEV DEVAYYA

JUDGEMENT

(1.) AN award was made a rule of Court on 5th Bahman 1344 -F by the District Judge of Osmanabad, whereby it was provided that the judgment -debtor shall pay the decretal amount in 21 yearly instalments and that the lands mentioned in the award shall stand hypothecated until the liability is discharged. There was also a condition that if two consecutive defaults were made in payment of the agreed instalments the creditor shall be put into proprietary possession of the lands thereby extinguishing, the rights of the judgment -debtor therein.

(2.) IT appears that defaults having occurred, the decree -holder applied in execution to be put -in possession of the lands according to the tenor of the decree. The District Judge and the Nazira e -Sadar -Adalat of Gulbarga refused the relief and directed the decree -holder to institute a regular suit (sic) was not the proper remedy and that the decree -holder has a right to proceed in execution. After this judgment, the District -Judge sent the copy of the decree and a warrant for possession of the lands to the Collector of Osmanabad. On its receipt the Collector has applied in revision under Section 21(2), Hyderabad Alienation of Land Act to the Court below on the ground that the decree and the order for delivery of proprietary possession trenches upon the provisions of the said Act; therefore they should be made consistent with it. The Court below instead of going into the merits of the contention digressed into the question whether the decree as it stood was capable of execution and finally held that it, being a preliminary decree, cannot be put into execution unless it was made final.