INDRASAN Vs. DALSINGAR CHAUDHARY

JUDGEMENT

(1.) This case has been very carefully argued by Mr. Radha Krishna, Advocate, for the opposite party. The facts are that on 5 April 1924, the judgment-debtor had mortgaged a grove No. 616, having forty mango trees planted on it, to the plaintiff. The description of the property mortgaged is as follows : "Ek qita bagh amba jisme chalis darakhtan amba hain maucua arazi number 616." (and then the name of the village and other details are given). The mortgagee filed a suit for sale in the year 1935 and obtained a decree. In the decree the description of the property as given in the mortgage deed as reproduced. The decretal amount was not paid by the judgment-debtor and the decree-holder applied for execution of the decree by sale of the grove. The judgment-debtor filed an objection on 28th May 1942, that he was an agriculturist and that according to the provisions of Section 22, U.P. Debt Redemption Act the decree could not be executed by sale of the trees. Section 22, U.P. Debt Redemption Act of 1940 is as follows: No decree to which this Act applies shall be executed by the transfer of trees belonging to an agriculturist unless the land on which such trees stand is also transferred: Provided that nothing in this section shall be deemed to prohibit the execution of a decree by the sale of the interest of a grove-holder.

(2.) The decree-holder's reply to this objection was that it were not the trees that were being sold but it was the interest of the grove-holder that was for sale. The executing Court by an order dated 1 August 1942, held: The sale of grove and grove-holder's interest is not prohibited by the Debt Redemption Act or the Agriculturists Relief Act, so sale can be effected.

(3.) The sale was effected and the decree, holder himself purchased the grove. The judgment-debtor then filed an objection that the civil Court had no jurisdiction to sell the interest of a grove-holder and that the decree should have been transferred to the Collector under Section 68, Civil P.C., for sale of the property. This objection was overruled by the executing Court and the Court then held that what it had sold was not the grove, holder's interest but certain trees in a grove. The objection was finally dismissed by the executing Court and the decision was upheld by the learned Civil Judge in appeal by an order dated 4 November 1943.