SHEO BANDHAN PANDE Vs. KISHAN PRASAD PANDE

JUDGEMENT

(1.) The question of law that arises for decision in the present appeal is whether a right of pre-emption under the Agra Pre-emption Act accrues on a transfer of a zamindary property being made by the Collector in favour of a decree-holder in accordance with the provisions of Section 5, United Provinces Regulation of Sales Act, 26 of 1934. The last mentioned Act was passed with the object of regulating "the sale of agricultural land in execution of Civil Court decrees against agriculturists," and by Clause (a) of Section 4 of that Act a decree-holder was given the option to "take" the agricultural land or a portion of the agricultural land of the judgment-debtor in full satisfaction of the decree at a valuation fixed by the Collector in accordance with the provisions of Section 3 of the Act. In case a decree-holder decided to exercise this option the Collector was authorized by Section 5 to transfer the land to him in full satisfaction of the decree.

(2.) In the present case it is admitted that the respondent decree-holders exercised the option given to them by Clause (a) of Section 4 and the Collector transferred the land to them. The plaintiff-appellant then brought the suit for pre- emption that has given rise to the present appeal. The decree-holder contested the suit inter alia on the ground that the transfer to them was virtually a sale in execution of a decree and that a right of pre-emption did not accrue to the plaintiff. This contention of the decree-holder was overruled by the trial Court and the plaintiff's suit was decreed. But on appeal the learned District Judge held that no right of pre-emption accrued on the transfer by the Collector and accordingly dismissed the plaintiff's suit. In my judgment the decision of the learned District Judge is perfectly correct. Section 6, Agra Preemption Act, provides that nothing in that Act shall affect the provisions of Rule 88, Order 21, Civil P.C. 1908, or Section 182, United Provinces Land Revenue Act 1901, or Section 24, Bundelkhand Encumbered Estates Act 1903, nor except as provided by those Sections, shall any right of pre-emption arise in respect of (a) any sale in execution of the decree of a Civil or Revenue Court, or (b) any sale in default of payment of land revenue or of any sum legally recoverable as an arrear of land revenue, or (c) any sale under the provisions of the Bundelkhand Encumbered Estates Act 1903.

(3.) Secs.7 to 10 of the Act make provision with respect to cases where no right of pre-emption accrues. Then by Section 11, which is made subject to the provisions of Section 6 to 10, the Legislature has provided that a right of pre- emption shall accrue whenever a cosharer or petty proprietor sells any proprietary interest in land forming part of any mahal or village in which a right of pre- emption exists, or where any such interest is foreclosed. It would appear from the provisions in the Act noted above that a right of pre-emption does not accrue in the case of a sale in execution of the decree of a Civil or Revenue Court and that ii; is only in the case of a voluntary Halo by a cosharer or petty proprietor of any proprietary interest in land that a right of pre-emption is given by the Act. I am not concerned in the present case with the right of pre-emption accruing on the foreclosure of a mortgage.