DASHRATHSA SHANKARSA LAD MAHAJAN ... Vs. MANGILAL NANDRAM MAHAJAN

JUDGEMENT

(1.) THE judgment-debtors one of whom is the appellant before us, mortgaged certain khudkasht fields to the decree-holders Seth Mangilal and Seth Ramprasad in 1927. As nothing was paid on the mortgage the plaintiffs obtained a preliminary decree in a suit brought on 24th October 1935 and that decree was made final on 26th November 1936. In 1938 some of the fields became recorded as sir, and as the result of this the decree-holders applied in the executing Court asking for an amendment of the decree by making an express order for the sale of both the proprietary rights and the cultivating rights in these sir fields. On this application the executing Court on 28th August 1941, the day on which the application was made, passed the following order: Decree-holder 1 with Mr. Gokhale and Mr. C.D. Meghasyam. Judgment-debtors absent. Mr. Gokhale files village papers for preparing 'C' form and also files an application for sale of sir lands which were khudkast when the decree was passed. The sir character has been acquired after the decree and those lands can legally be sold, with express direction to sell the rights of sir lands, in view of Section 49(1)(b) of the amended C.P. Tenancy Act. It shall be sold accordingly, and 'C' form be prepared and sent to Collector.

(2.) AGAINST this order one of the judgment-debtors has appealed. The appeal must succeed. The order is the result of a cursory and careless perusal of Section 49(1)(b) of the amended Tenancy Act. Section 49(1)(b) embodies one of the exceptions to the retention of his cultivating rights by an ex-proprietor of sir, and before such an exception obtains Clause (b) which runs when such sir land is sold in execution of, or foreclosed under, a decree of a civil Court which expressly directs the sale or foreclosure of his right to cultivate such sir land stipulates that it is a decree which must expressly direct the sale or foreclosure of such rights in such sir land. Here the decree which was passed in 1936 makes no mention of such direction, naturally enough, as the land was not sir land at the time of the decree. In addition to this the amended Act could have no application to a decree passed as far back as 1936. The law in any case has in nowise been altered by the amendment of the Tenancy Act in Vishwanath v. Bapu Jagannath Pollock J. stated: As the law is at present interpreted, it is open to a malguzar to mortgage a khudkasht field, subsequently get it declared as sir, and then, when the field is foreclosed, claim to be the occupancy tenant of it, so that the mortgagee's security vanishes. I regard this as unfair and I think it unlikely that the Legislature ever envisaged such a possibility. It seems to me, however, that this decision follows from the wording of Section 49 and that the Courts are not at liberty to speculate on what the Legislature may have intended.