BHAGWATI SINGH Vs. LKASHI NARAIN

JUDGEMENT

(1.) These are two execution second appeals which have been referred to? a Full Bench for decision. In Execution Second Appeal No. 1195 of 1935, Kashi Narain had obtained a simple money decree against the assets of Dirgpal Singh in the hands of his three brothers and his adopted son. One of these brothers was the appellant Bhagwati Singh and another was the appellant Sultan Singh. Hirday Narain had obtained a simple money decree against Sultan Singh in Execution Second Appeal No. 1196 of 1935. The lower Appellate Court has found that the family was separate. The application for execution in each case was that a lease should be granted to the decree-holder for a period of 20 years so that the decretal amount should be realized. The property had been attached before judgment. The property in question consisted of zamindari shares in villages in the Trans-Jumna Tract of Etawah district and under Section 16, Bundelkhand Land Alienation Act of 1903, which applied to this area No land belonging to a member of an agricultural tribes shall be sold in execution of any decree or order of any Civil or Revenue Court made after the commencement of this Act.

(2.) The objection was taken by the judgment-debtors that the property should not be leased and the first Court allowed the objection but the lower Appellate Court allowed the appeal of the decree-holder and dismissed the objection with, costs. The lower Appellate Court therefore has held that the Civil Court can grant the lease for 20 years to the decree-holder. Learned Counsel for the respondent in arguing to uphold the order of the lower Appellate Court based his case on Section 51, Civil P.C., and also on Section 72. Section 51 states as follows: Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree...(e) in any other manner as the nature of the relief granted may require.

(3.) The argument was that these words "in any other manner" are perfectly general and that although leases are not enumerated in the Clauses (a) to (d), a lease being a transfer to a less extent than a sale may be a remedy allowed by the words "in any other manner". The argument was supported by a Full Bench ruling of the Lahore High Court in Datar Kuar V/s. Ram Rattan (1920) 7 A.I.R. Lah. 456. This ruling was followed in Majhli Dullaya V/s. Munna Lal by a, Bench of this Court in a case where sale was prohibited by Section 16, Bundelkhand Land Alienation Act. The reasoning of the Court was that as the owner himself could have granted a lease in accordance with the terms of; Section 11, Bundelkhand Land Alienation Act, therefore there was no reason why the execution Court could not do what the owner could do. This principle does not seem to be correct. It is open to an owner to destroy his property but such a course is not open to an execution Court. I consider that an execution Court is bound by the methods laid down in Section 51, Civil P.C. and those methods are subject to such conditions and limitations as may be prescribed, i.e. conditions or limitations prescribed by the rules under the Code and by the Code itself. Now in regard to the power to lease, such a power is given in Schedule 3 to the Collector and in Section 72 to the Collector, but in both those cases the power is exercised. by the Collector and the condition to the effect that it should be exercised by the Collector will prevent such a power being exercised by the Civil Court under Section 51(e). The view that Section 51 does not authorize a, Civil Court to grant a lease has been held in Basore Singh V/s. Sant Kumar , by a Bench of this Court. In my view the meaning of Section 51(e) is as follows : The words are "in suck other manner as the nature of the relief granted may require." Now the relief granted is the relief granted in the decree. A decree may be for rendition of accounts or for partition or for restitution of conjugal rights. In each of those cases there will be a particular method of execution which is required, for example in the case of partition, there will be appointment of an amin to form lots for dividing the property. I do not think that Sub-section (e) means anything else than a reference to the particular method of execution which a particular relief granted requires.