PARAMESHWAR PRASAD Vs. WALJI CHHATRI

JUDGEMENT

(1.) This is an appeal by the judgment-debtor. He mortgaged his tiled house standing on Hamid's settlement plots Nos. 2425 and 5417 to the opposite party. The opposite party sued to foreclose the mortgage and obtained a decree for foreclosure and possession. At the stage of delivery of possession the appellant objected that the property in suit was his occupancy holding and was not transferable, under Section 46, Central Provinces Tenancy Act. The Munsif allowed the application but this decision was reversed by the subordinate Judge of Sambalpur.

(2.) The decree-holder had resisted it on two grounds: first it was not maintainable and the executing Court could not go behind the decree; and secondly the lands were not the occupancy tenancy of the objector. The same points were taken before the subordinate Judge in appeal and the contention as to non- maintainability failed but the other contention of the decree-holder succeeded with the result that he allowed the appeal and dismissed the objection against the execution.

(3.) The objector appellant is not the recorded raiyat. The lands stood in the settlement record in the names of Bhagirathi and others from whom the land was purchased by Baldeo Ahir. Thereafter the present judgment-debtor objector bought the lands from Baldeo Ahir on 4 July 1930. The subordinate Judge holds that the lands have ceased to be connected with any agricultural holding, that they are residential house property and that Section 46 of the Act does not apply at all.