MT JAMUNI Vs. BHOLARAM

JUDGEMENT

(1.) This is a second appeal arising out of an execution proceeding which was started by the respondents who are admittedly mortgagee decree-holders. It appears that the respondents obtained a mortgage in respect of plot 1042 and subsequently having obtained a decree upon the basis of the mortgage, proceeded to sell it. Meanwhile the entire holding consisting of some 13 or 14 plots, including the plot in question, had been sold by the landlord, who had obtained a certificate, for arrears of rent under the Public Demands and Recovery Act and purchased by the appellant. When, therefore, the landlord attempted to sell the plot in question the appellant appeared and preferred an objection which she purported to do under Order 21, Rule 58. The main ground of objection was that the plot in question could not be sold under Section 47 Chota Nagpur Tenancy Act, as it was part of a raiyati holding. When these objections came to be heard two questions arose before the executing Court, first, whether the appellant had the locus standi to object; and, secondly, whether the plot in question was in fact part of a raiyati holding or not. On the first point the learned Munsif came to the conclusion that although the appellant could not prefer an objection under Order 21, Rule 58 in a proceeding which was taken in execution of a mortgage decree yet she could object to the sale as a representative of the judgment-debtor and the objection should be taken to have been preferred under Section 47, Civil P.C. On the second point he came to the conclusion that the plot in question, though by itself, was a piece of homestead land, was nevertheless governed by the prohibition contained in Section 47, Chota Nagpur Tenancy Act, inasmuch as this plot was part of a raiyati holding.

(2.) From the decision of the learned Munsif the mortgagee decree-holders appealed to the Judicial Commissioner of Chota Nagpur who disposed of the appeal on the preliminary ground that the appellant was not a representative of the judgment-debtor under the mortgage decree and, therefore, she had no locus standi to prefer any objection in the course of the execution proceedings. The learned Judicial Commissioner however, did not devote his attention to the other question namely whether the Court was competent to sell the land in question in view of the provisions of Section 47, Chota Nagpur Tenancy Act. The appellant has now preferred this second appeal and it is urged by the learned advocate appearing for her that the learned Judicial Commissioner was in error in holding that she was not a representative of the judgment-debtor. It appears from the judgment of the learned Judicial Commissioner that it was conceded before him by the pleader who appeared for the present appellant in his Court that she was not a representative of the judgment-debtor, and, in my opinion, the learned pleader was quite right in making this concession. The question as to whether a purchaser of the judgment-debtor's property is his representative or not, has been the subject of conflicting decisions, but without referring to all those decisions, it is enough to point out that in this case the appellant cannot be held to be a representative of the judgment-debtor, because she would not be bound by the mortgage decree which has been passed as between the decree-holders and the mortgagor. If, therefore, she is not bound and not affected by the decree, it is obvious that she cannot be deemed to be a representative of the judGment-debtor merely because she purchased the entire holding, a portion of which had been mortgaged. That being so, the learned Judicial Commissioner was correct in his view that the appellant could not intervene in the execution proceedings. The fact, however, remains that apart from whether the appellant objected to the sale or not, it was the duty of the Court, in which the execution proceeding was started, to decide whether the property sought to be sold could be sold or not. Section 47, Chota Nagpur Tenancy Act, provides in plain terms: No decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding, nor shall any such right be sold in execution of any decree or order.

(3.) The provisions of this section have been elaborately explained in several decisions of my learned brother; but in the present case it will be necessary to refer to one of these only, that being the decision in Rupnath Mandal V/s. Jagannath Mandal 1928 Pat 227, in which it was pointed out that once it is found that the lands sought to be sold form a raiyati holding, whether the judgment-debtor took the objection or not, the sale of such a holding cannot take place in the face of the clear provisions of Section 47, Chota Nagpur Tenancy Act. In the present case, although under Section 46 the tenant could mortgage the holding or a portion of the holding for a period not exceeding five years, yet by reason of the plain provision of Section 47 that holding could not be sold in execution of the mortgage decree. That being so, in order to satisfy ourselves as to whether the land in question forms a part of the raiyati holding, we have examined the record and we are of opinion that it did form part of such a holding and so it cannot be sold. That being so, in my opinion the view taken by the Munsif is correct and should be upheld. The appeal is therefore allowed and the order of the learned Judicial Commissioner is set aside. As both the parties have partially succeeded in their respective contentions each party will bear his own costs in this Court and the Court below. Macpherson, J.