GIAN CHAND Vs. SHIV RAM

JUDGEMENT

(1.) THIS application in revision has been referred to us by Honble Gurtu J as he felt that the point involved in the matter was of great public importance and required an authoritative pronouncement

(2.) THE facts leading to the revision application are; Fahmi, Mohamad Shafi and Mohamad Alam son of Rahim Bakash and respondent 2, 3 and 4 herein, who held one third share as occupancy tenants under Lal Chand, the father of the applicants herein sold their share of the occupancy rights in the Land measuring 57 Kanals and 2 Marlas entered in khewant No. 28 Khata No. 78/ 192, Khasra Nos. 157 and 532/159 of village Rehan, Tehsil Rajouri, as also in the house standing thereon for a sum of Rs. 1,000/ - in favour of Shiv Ram respondent I, herein, vide sale deed dated 23rd April 1968. The sale having been effected in contravention of the mandatory provisions of section 60 of the Jamrnu and Kashmir Tenancy Act 1980 (1923 A. D ) Lal Chand instituted a suit under Section 66 read with Section 85 (3) (f) of the Act for declaration that the said sale was invalid and ineffectual as also for dispossession of Fahmi and his two brothers Mohammad Shafi and Mohd Alam. This suit though dismissed by the Collector, Poonch was ultimately decreed on appeal by a single Judge of the High Court vide judgment dated 4th May, 1963, which was upheld on appeal by a division bench of this court vide judgment dated 16 -9 -1963. Some time later Fahmi, Mohammad Shafi and Mohamad Alam got back the possession of the land as occupancy tenants. Shiv Ram then brought a suit against Fahmi and others for recovery of Rs, 1088 / - i. e., for refund of the sale consideration and the costs incurred by him as stamp duty and registration fee in connection with the execution of the aforesaid sale deed dated 23rd April, 1958. This suit was decreed in favour of Shiv Ram by the Subordinate Judge, Rajouri, on the basis of a compromise arrived at between Shiv Ram on the one side and Fahmi and his brothers on the other and in execution of the decree the occupancy rights belonging to Fahmi, Mohamad Shafi and Mohamad Alam were attached at the instance of the decree holder. Gian Chand and his brothers who are applicants herein thereupon filed an objection petition contending that the occupancy rights were exempt from attachment and sale vide Section 60 of the Civil Procedure Code. The Executing court rejected the objection petition holding that the objection was untenable. Against this order, Gian Chand and his brothers have come up in revision to this court, which as stated above, has been referred to us for decision.

(3.) THE only point urged by Shri Avtar Singh, appearing on behalf of the applicants, is that under section 60 of the Code of Civil Procedure, ARAZUAT MAQBUZA ASSAMIAN MAU -RU -I WA MALIKAN," cannot be attached and sold in execution of a decree.