S TAHIR HASAN Vs. LCHANDER SEN

JUDGEMENT

(1.) This is an execution of decree appeal by Syed Tahir Hasan, who objected in the Court below to the execution of a decree obtained by the respondent, L. Chander Sen, on foot of a mortgage deed executed by the appellant's patients and the appellant himself, on 21 March 1921, in respect of proprietary right in the right to hold revenue free shares in a number of villages described in the mortgage deed.

(2.) The objector-appellant was a party to the suit in which the decree for sale of the mortgaged property was passed. The father of the appellant had died before the institution of that suit, which was brought against the other two executants, including the appellant, and certain subsequent transferees. The appellant did not, enter appearance, and the proceedings were ex parte against him. His mother however contested the suit. She pleaded that the property to which the mortgage related was not transferable under the Pensions Act 23 of 1871, nor had the Court any jurisdiction, without the Collector's certificate, to entertain the suit. Subsequently the plaintiff obtained the requisite certificate from the Collector and filed it. The written statement was amended, and it was pleaded that as the plaintiff (the mortgagee) was a stranger to the group of grantees, he could not maintain the suit in spite of the Collector's certificate. The Court struck a number of issues, Nos. 2 and 3 of which ran as follows: (2) Whether the property in suit is not transferable under Secs.4, 6, and 12 Pensions Act of 1871? (3) Whether the suit is cognizable by this Court without the Collector's certificate?

(3.) The Court decided both the issues in favour of the plaintiff and decreed the suit. A final decree was passed in due course, and the decree-holder applied for its execution. The present appellant then objected to the sale of the property, inter alia, on the ground that under Section 11, Pensions Act, the Court had no jurisdiction to sell the property which was of the nature described in the aforesaid section. The objection was disallowed in a very summary order which betrays want of appreciation on the part of the lower Court as regards the nature of the objection and the questions thereby raised. The case was argued, at considerable length before us as if the entire controversy was of first impression. The Pensions Act (Act, 23 of 1871) is described as "An Act, to consolidate and amend the law relating to pensions and grants by Government of money or land revenue."