CHHITIABAI Vs. HARSAHAILAL

JUDGEMENT

(1.) THIS is an appeal against the order passed in execution proceedings. Mt. Chhitiabai, the decree-holder, held a mortgage from one Harsahailal of the latter's shares in Kanhargaon and Khamarpani. The mortgage covered the cultivating rights in the mortgagor's sir lands with the sanction of the revenue authorities. In execution of a money decree transferred to the Collector for execution, Harsahailal's village shares were sold by auction to one Hazarimal.

(2.) DURING the proceedings before the Collector, one Darbarilal had purchased the property. In litigation between Hazarimal and Darbarilal, this Court decided that the auction sale to Hazarimal did not give him cultivating rights in the sir land, of which Darbarilal be-came an occupancy tenant. Mt. Chhitiabai has now sued on her mortgage and obtained the decree for foreclosure. She claimed under that decree cultivating rights in the land that had been sir but afterwards became the occupancy holdings of Darbarilal. The lower Court has held that she is entitled to these rights, and the widow of Darbarilal has filed this appeal.

(3.) I do not agree that Section 12(2) refers only to transfers under Sub-section (1). The use of the words "by Act" seems to me to put the matter beyond doubt. Several other decisions have been cited on behalf of the appellant. Of these Narayan Ganesh v. Baliram AIR 1918 PC 84 is clearly distinguishable from the present case, because in it mortgage deeds and the foreclosure decree made in pursuance of them had been extinguished by a connection of award which was held to have the same effect as an entirely fresh contract, which under the Tenancy Act of 1898, which by the time of the award, had come in force, did not give the mortgagees cultivating rights in the sir lands. The other cases cited are Bhimraja v. Mukundilal AIR 1924 Nag 155, Lachminarain v. Shridhar AIR 1928 Nag 100 and Rajeshwar v. Rukhami.