PARSHOTTAM HARGOVAN PAREKH Vs. HARBHAMJI AMARSANGJI THAKOR

JUDGEMENT

(1.) The appellant, having obtained a money decree against a taluhdar, who is now deceased and is represented by the respondents, presented a darkhast for its execution. Several villages, belonging to the taluhdar, were attached and the Court sent the darkhast to the Collector to be dealt with under Secs.320 to 325 of the Civil P. C. of 1882, then in force. The Collector in his turn transferred the darkhast to the Talukdari Settlement Officer,, the reason for that being that the latter combined in himself, according to a rule having the force of law, the functions of Collector and Talukdari Settlement Officer for the purpose of execution of decrees against or in respect of talukdari lands. That Officer, acting under the sections in question, framed a scheme, whereby it was arranged that the appellant should be put in possession of one of the attached villages and allowed to enjoy the income of that village for seven years in satisfaction of the decree and that the other villages should be releasid from attachment. The appellant assented to the scheme and the Talukdari Settlement Officer, acting upon it, wrote to the Deputy Manager a letter (Exhibit 54), informing him of the scheme and asking him to put the appellant in possession of the village. At the same time the Talukdari Settlement Officer recorded an order and sent it to the Court which had passed the mone-ydecree. That order (see Exhibit 22) is as follows: The qubulayat, given by the plaintiff to accept in Pulachut the income of Karsah-pura, for seven years in satisfaction of his darkhast No. 614 of 1899 and 552 of 1899, is put in the case; order is given to the Deputy Manager to carry it out accordingly. This darkhast is to be entered in the list of Japti Vahivat (management of attached estates) under Section 323, Civil Procedure Code and order is given to send its account every year and, therefore, this darkhast is taken out of the list of cases under inquiry and entered in the list of attached estates.

(2.) The scheme was made, the order was passed, and delivery of possession of the village was given to the appellant after the judgment-debtor had died and after the amendment of Section 31 of the Talukdari Act had come into force. That section runs as follows: No incumbrance on a talulidar's estate, or on any portion thereof, made by the taluk-dar after this Act comes into force, shall be valid as to any time beyond such talukdar's natural life, unless such incumbrance is made with the previous written consent of the Talukdari Settlement Officer, or of some other officer appointed by the Governor-in-Council in this behalf (and after the death of a talukdar no proceeding for the attachment, sale or delivery of, or any other process affecting the possession or ownership of, a taluhdari estate, or any portion thereof, in execution of any decree obtained against such talukdar or his legal representative, except a decree obtained in respect of an in-cumbrance made with such consent as aforesaid, or made before this Act comes into force, shall be instituted or continued except with the like consent.)

(3.) It appears that the Taluhdari Settlement Officer was not aware of the latter portion of Section 31 when he settled the scheme, passed his order, and put the appellant in possession of the village. Accordingly, the Court was requested to dispose of the darkhast by holding that the appellant could not retain possession of the village under the scheme.