BAIDYANATH MANDAL Vs. RUKMINI SUKHANI

JUDGEMENT

(1.) The sole respondent obtained a decree in Title Suit No. 81 of 1964 in the Court of the Subordinate Judge, Alipore. The decree was put under execution in that Court (Execution Case No. 14 of 1966); but, at the request of the respondent, it was transferred to the Court of the Subordinate Judge, Deoghar, for execution, where it was numbered as Execution Case 22 of 1966.

(2.) The decree was for a sum of Rupees 1,31,880.05, including costs of the first execution, and was sought to be realised by the sale of the right, title and leasehold interest in 390.51 acres of land of the appellants (judgment-debtors) in Mouza Khun bearing Thana No. 593, Taluq Fulochwan, Thaua Sarath, Sub-division Deoghar, in the district of the Santhal Parganas, wherein the appellants had been carrying on business in coal-mining in the Central Chitra Colliery under the name and style of B. N. Mandal and Co. The appellants raised a number of objections to the said execution under Section 47 of the Code of Civil Procedure which gave rise to Miscellaneous Case No. 1 of 1967 of the Court below. Shortly put, their contention was that the decree was null and void and the execution not maintainable and that, as the respondent sought to realise the decree by attachment and sale of the mineral rights owned by the appellants, pre- vious sanction of the Central Government was necessary. The Court below, relying on the Bench decision of this Court in Bhowra Kankanee Collieries Ltd. v. Sunil Kumar Roy, 1968 Pat LJR 486, negatived this contention of the appellants. Following that decision, the Court below held that the Mineral Concession Rules (hereinafter referred to as the Rules) which came in force in 1948 did not apply to the present lease created in 1946. It also relied upon the notification published in the India Gazette (Part II) dated the 13th April, 1968, by which Rule 37 of the Rules was amended and the provision regarding previous approval of the Government was omitted.

(3.) It will be useful to quote the relevant portions of Rules 37 and 48 of the Rules which are in these words:-- "37. The lessee shall not without the previous consent in writing of the State Government, which in case of mining lease in respect of minerals specified after previous approval of the Central Government. (a) assign, sublet, mortgage, or in any other manner transfer the mining lease of any right, title or interest therein.... ***