DADOO BALAJI KORKU Vs. KANHAIALAL DHANARAM

JUDGEMENT

(1.) THIS is an application under Order 41, Rule 5, Civil P.C., for stay of execution of the decree. The suit for specific performance of the contract and for Rs. 2,000 as compensation for delay in performance of the contract for sale was filed on 29-9-1939 against Balaji. There was also an alternative claim that the defendant be ordered to refund Rs. 25,000 on account of the purchase price and to pay compensation of Rs.

(2.) ,000 for loss of profits of the property in suit or interest from 28-91937 to the date of suit with future interest at 10 p c, p.a. from the date of suit till realisation. Balaji died during the pendency of the suit and in his place his widow, sons and daughters were brought on record as his legal representatives. His mother, Mt. Jhimai was also made a party but she died during the pendency of the suit and I am not concerned with her in this appeal. 2. The Court of the Additional District Judge, Betul, by the decree dated 8-11-1943 directed the defendants within two months of the date of the decree to execute a duly stamped and registered sale deed in favour of the plaintiffs conveying full 16 annas share in the seven villages, Genhubarra, Tipring, Naharpur, Kamod, Dharwagawhan (Bhusaikheda), Bakka, Deopur and an eight anna share in the two villages Gadhakar and Parsodi. The Court dismissed the claim for compensation for Rs. 2,000. It is against the decree that one of the defendants Daddoosingh has filed F.A. No. 123 of 1943. Along with the appeal, an application for stay of execution of the decree was also filed on 17-12-1943. The plaintiffs-respondents 1 and 2 have filed a cross-objection for Rs. 2,000 on account of the claim for compensation which had been disallowed by the lower Court.

(3.) THE defendants are members of an aboriginal tribe and are governed by the provisions of the C.P. Land Alienation Act, 1916. Under Section 16 of the Act, no land belonging to a member of an aboriginal tribe is liable to be sold in execution of any decree or order of any Civil or Revenue Court, nor can a receiver be appointed to manage such land under Section 51, Civil P.C. The contract of sale dated 28-9-1937 on the basis of which the suit was filed was alleged to have been entered into by Balaji. The plaintiffs in whose favour the contract was entered are not members of an aboriginal tribe. Under Section 4(2), Balaji could not sell his land permanently unless and until sanction was given thereto by the Deputy Commissioner, Betul, within whose jurisdiction the villages are situated. The Deputy Commissioner, Betul, by the order dated 30-9-1937 (Ex. P. 14) accorded sanction for the sale of the 9 villages by Balaji in favour of the plaintiffs. This sanction was revoked by the Commissioner by the order dated 21-9-1940 (EX. 1-D-30). The Financial Commissioner by the order dated 26-1-1942 set aside the order of the Commissioner and was of opinion that the order of the Deputy Commissioner granting sanction was improper, but the sanction was not revoked by him. The defendants are not persons who made the contract for sale. It will be for the High Court to determine whether in the circumstances of the case the decree for specific performance of the contract was justified.