SURAJ PAL SINGH Vs. SARJOO PRASAD

JUDGEMENT

(1.) It would appear that the respondents filed a suit against the appellant for recovery of their mortgage money by sale of property on the basis of a mortgage deed, dated 11 April 1932. The suit was decided by a compromise between the parties on 19 May 1939, It was agreed that the suit be decreed for Rs. 700, the plaintiffs-decree-holders would be paid in seven equal annual instalments in Baisakh each year and if there was a default in three consecutive instalments, the plaintiffs would be entitled to get the six pies share pukhtedari of appellant foreclosed in lieu of the decretal amount and that the plaintiffs would be entitled to apply for final decree for foreclosure by delivery of possession and at that time defendant I will be debarred from all rights over his six pies share which will go in the ownership of the plaintiffs. The plaintiffs should apply for mutation of their names at that time and their names would be mutated instead of defendant 1. The respondents-decree-holders applied for delivery of possession on 19 May 1948, in execution of this final decree and apparently on 20 May, 1943, an order for formal delivery of possession was passed. On 7 July, 1943, the appellant filed an objection under Section 47, Civil P.C., saying that the decree could not be executed in the manner asked for in view of Section 17, U.P. Debt Redemption Act, because he was an agriculturist paying less than Rs. 25 as local rate. The decree-holders conceded that the appellant judgment debtor is an agriculturist paying less than Rs. 25 as local rate, but contended that Section 17 nevertheless did not apply as the decree was a compromise decree. The executing Court thought that as the property in question had already been foreclosed, the question of application of Section 17 did not arise. The judgment-debtor went up in appeal and the learned Additional Civil Judge, Gonda, came to the conclusion that Section 17 does not apply to the decree in the present case. He thought that it applies to such decrees in which any property is sold or transferred by a Court, and as in the present case the transfer took place as a result of the compromise, the decree was not of the bind contemplated by Section 17. He accordingly dismissed the appeal.

(2.) It has been urged that the view taken by the Court below is wrong and that Section 17 is clearly applicable in the present case. I have heard the learned Counsel for parties and agree that the view taken by the learned lower appellate Court, is wrong and the appeal must be allowed.

(3.) There is no doubt that the compromise [decree passed was a final decree and there was no need for applying afresh for the preparation of the final decree notwithstanding a provision to that effect in the compromise. Section 17(1)(a), U.P. Debt Redemption Act, provides that not-withstanding anything contained in Section 16 or in any other law for the time being in force, the land of agriculturist, the local rate payable by whom or recoverable from whom does not exceed twenty-five rupees per annum shall not be sold or otherwise transferred in execution of a decree to which this Act applies, nor shall a final decree for foreclosure be passed in respect of such land. It is not disputed that the decree in this case is a decree to which the Debt Redemption Act applies. There is no doubt that the present case is not one where an application has been made for preparation of a final decree for foreclosure. There is also no doubt that this is a case of execution of the final decree already passed. In these circumstances, the appellant can avail himself of the benefit of Section 17(1)(a) only if he can show that this is a case in which the property has either been sold or otherwise transferred in execution of the decree. There is nothing in the section to warrant the view of the lower Court that the sale or transfer of property should have been made by the Court. Section 17(1)(a) clearly indicates that all transfers, irrespective of the mode of transfer, are prohibited in execution of the decrees governed by the Act. There is no denying the fact in this case that the property has actually been transferred in execution of the compromise decree. Section 17 (1)(a) is, therefore, clearly applicable.