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Judgment
D.K. Mahajan, J.—This is an appeal under clause 10 of the Letters Patent and is directed against the decision of the learned Single Judge of this Court dismissing the petition of the appellants under Articles 226 and 227 of the Constitution of India.
The admitted facts are that Nadar Chand father of the appellant obtained a money decree for Rs. 16,771/- against one Mokham Din. During the course of the execution proceedings and in pursuance of the provisions of section 68 of the CPC the decree was forwarded to the Collector for execution. The Collector on the 30th September, 1940 passed the following order:
It is, therefore, ordered that the land situate in village Dipulana khewat and khatauni Nos. 2/21 to 36 and land situated in village Ohjanwali, khewat and khatauni Nos. 2/21 to 23 is leased out for 20 years to the decree-holder commencing from crop kharif 1941 and the lease is hereby sanctioned accordingly.
It may be noted that as the entire area of the judgment-debtor in the aforesaid villages is being leased out the parties will not have any quarrel about the change of possession.
It may be mentioned that the judgment-debtor had land in other villages and that is why the land in these two villages was leased out in its entirety. After the partition of the country the judgment-debtor who was a Muslim became an evacuee and his lands vested in the Custodian, Evacuee Property. It was in this situation that the Assistant Custodian (Judicial) on the 8th of June 1949 passed the following order:
The judgment-debtor resisted execution of decree and it is frankly admitted by the decree-holder that he has not been able to obtain the possession of the land so far. His prayer is that now the evacuee has migrated to Pakistan, and his property has vested in the Custodian, its possession may be delivered to him, for the rest of the period in accordance with the order of the executing court. I am of the opinion that the prayer of the petitioner is valid. He has the right to obtain possession of the property in satisfaction of the decree according to order of S. D. O. dated 30th September, 1940. I, therefore, recommend that the decree-holder may be given possession of the property on the clear understanding that on the expiry of the term of lease, his claim will be deemed to have been satisfied. He shall have to vacate the property when the period of lease expires.
It is common ground that before this order was passed the decree-holder had applied for possession of the land by an execution application filed on the 17th May, 1941, in the executing Court. This application was consigned to the record room on 13th of September, 1941. It is also in evidence that another application by the decree-holder for obtaining possession was consigned to the record room on the 5th of June, 1946. In pursuance of the order of the Assistant Custodian (Judicial), the Additional Custodian, Evacuee Property passed the following order on the 2nd October, 1949:
A. C. (J) may see his report dated 8th June, 1949. Possession may be delivered to D.H. Action will be taken under the Alienation of Land Act or the Ordinance at the appropriate time.
It appears that right up to March 1951 the possession was not delivered to the decree-holder. This is evident from annexure ''D, a letter written by the counsel for the appellants to Dewan Somer Nath, P. C. S., Additional Deputy Commissioner, Ferozepur. It is common ground that in pursuance of the order of the Additional Custodian dated the 2nd of October, 1949, the appellants were given possession of 613 kanals and 19 marl-as of the land from kharif 1953 in village Dipulnna but out of this land the appellants were dispossessed from an area of 60 kanals and 10 marlas because this area of 60 kanals and 10 marals stood allotted to displaced persons. The appellants were also given possession of 302 kanals and 9 marlas on 19th December, 1958 and 82 kanals and 18 marlas on 12th July, 1959, in village Ohjanwali. On the 29th of December, 1960, the appellants presented a claim before the Additional Custodian, Punjab, Jullundur, complaining that in spite of their best efforts they had not been given possession of the remaining area in both the villages that and they were entitled to remain in possession of the area in their possession for complete 20 years from the date of possession, and that for the remaining area they were entitled to possession for 20 years after the allotments of that area were cancelled and they were put in possession. In the alternative it was prayed that the appellants were entitled to get the decretal amount after deducting the amount pertaining to the area of which they had got the possession. This claim was heard by Shri R.S. Phoolka, Additional Custodian, Punjab, and by his order dated the 7th of February, 1961 he rejected the same. Shri Phoolka''s order reads thus.-
This application does not lie here. It is for the applicant himself to claim share of produce or rent from the people in possession of the land claimed to be under lease with him. He cannot wriggle out of the possession and claim extension on one pretext or the other.
Against the order of Shri Phoolka, Additional Custodian. Punjab, Jullundur, the appellants preferred a revision u/s 27 of the Administration of Evacuee Property Act. This revision was disposed of by Shri H.R. Nair, Deputy Custodian General of Evacuee Property. The relevant part of Mr. Nair''s order reads thus-
From the material now on the record before me it is proved that the petitioners were not entitled to the possession of any land and the order of possession passed by Shri Parshotam Lal, Additional Custodian was obtained without disclosing the full facts. Since considerable area of agricultural land is involved and it is prima facie established that a false claim for right of possession of property was preferred. I think it would be in the interest of justice that the petitioners are allowed an opportunity to substantiate their contentions by producing documentary evidence regarding the alleged resistance in execution proceedings by the judgment-debtor and that they had presented an execution application during the intervening period of 1941 to 1948 They would also have to prove that the decree rem lined unsatisfied and the complaint regarding its payment was not correct. In case they fail to substantiate their contention and the facts as alleged the department would be fully justified to claim compensation for the use and occupation of the land which remained in their possession all those years unauthorised. In case it is established that there were valid proceedings for execution of the decree during 1941 to 1948, and the petitioners were entitled to the possession of the leased land, their claim may be disposed of on merits. Shri Parshotam Lal, Additional Custodian in his order referred to above hinted about the passing of an impending legislation. This legislation was later on passed and was known as the East Punjab Displaced Persons (Land Resettlement) Act, 1949. Further action may be taken in pursuance of the provisions of this Act. For both these purposes, I remand the proceedings to the Additional Custodian, Punjab, who will pass appropriate orders after allowing an opportunity to the petitioners as indicated above.
When the case came before the Additional Custodian, Evacuee Property, Jullundur, after remand, it was dealt with by Shri Jagmohan Lal Tandon. He rejected the petition of the petitioners dated the 20th December, 1950. which had earlier been rejected by Shri Phoolka, asking for the possession of the balance area. The relevant part of his findings is as follows :
that the decree had been satisfied and that was the reason the decree-holder did not pursue his execution applications or did not attempt to recover the possession of the land that had been given to them on mustajari. It appears that after Mohkam Din had migrated to Pakistan, Nadar Chand thought of taking possession of the land in spite of the fact that the decretal amount had been paid by the Muslim judgment-debtor to him.
I do not agree with the argument that since Nadar Chand had obtained land on mustajari there was no occasion for him to file an execution application. This was never the case of the petitioners before the Deputy Custodian General. Secondly the fact remains that right up to the partition of the country, Shri Nadar Chand did not take possession of the land. Thirdly if Nadar Chand were to take possession of the land given to him on musta jari then he was to take it from the execution Court. Fourthly the judgment-debtor could always pay the decretal amount in that case, the order of musta jari would have been taken as set aside.
Against this order the appellant preferred a petition for revision u/s 27 of the Administration of Evacuee Property Act. This petition came up for hearing before Shri H.R. Nair, Deputy Custodian General of Evacuee Property who rejected this petition on the following grounds-
The first point for consideration, as indicated in my previous order is whether in the absence of any execution application filed between 7th May, 1943 and 22nd March, 1948, the decree had been kept alive and whether its execution was barred under article 182 of the Indian Limitation Act even if it was assumed that the decree had not been satisfied. The evidence produced shows that an application was filed in 1943 which was dismissed on 7th May, 1943 in default. The last application for the purpose seems to have been filed on 22nd of March, 1948, and that too was dismissed for want of prosecution. Thus there was a clear gap of over three years between the application filed in 1943 and that filed in 1948 and accordingly the execution application filed in 1948 was barred under the provisions of Article 182 of the Indian Limitation Act as a result of which the decree had become non executable. In the course of the present revision petition it has been averred that an execution application was filed in 1946 but this fact could not be established as it is stated that the record pertaining to that period was not traceable in the office of the Deputy Commissioner. I am afraid this assertion has not been substantiated. No proof of any such application has been furnished to enable the Department to verify the fact by tracing out the relevant record. An extract of the Goshwara or Register No. 10 could have been produced as has been done in respect of the execution application filed in 1943. There is no explanation why the petitioners failed to produce such an extract. During the course of arguments the existence of a register for this period was also denied though there is nothing on the record in support of this plea. On the contrary the extract of Register No. 10 filed in respect of the application of 1943 shows that it relates to years 1942 to 1949 and if in fact, there had been any execution application in 1946 its entry would have been referred to in this copy and a copy could have been easily produced. In this connection it may also be mentioned that in the execution application dated 22nd March, 1948 against the prescribed column requiring details of the previous execution applications and their results with dates, curiously enough the details have been withheld and only a vague remarks has been recorded. There was no reason to omit the details of at least the last application more particularly of the application alleged to have been filed in 1946. The next contention of the petitioners that after obtaining musta jari of the land there was no occasion to file an execution application has no substance either and it stands controverted by their own version and conduct. One of their contention in these proceedings is that the judgment-debtor has all along been resisting the delivery of the possession until his migration to Pakistan and further that these proceedings had finally been terminated in their favour.
It is this order of the Deputy Custodian General which was challenged in the present writ petition. The petition failed in this Court. The present appeal under clause 10 of the Letters Patent has been filed against the order dismissing the petition.
I have purposely set out in detail the reasons which have prevailed with various authorities at different times in going back upon the decision of Shri Purshotam Lal, Additional Custodian Evacuee Property dated the 2nd October, 1949 (Annexure C). It will appear that right up to the final order two reasons prevailed with the authorities for going back upon the order of Shri Purshotam Lal. One reason was that the decree-holder had been paid the decretal amount out of Court and, therefore, he did not bother to obtain possession of the land. The other reason that prevailed was that the execution application before the executing court had become time-barred when the order dated the 2nd October, 1949, was passed whereby the decree-holder was ordered to be put in possession of the agricultural land of the judgment-debtor which in the meantime had vested in the Custodian of Evacuee Property. However, at the time of the final order the first ground did not prevail with the Deputy Custodian General of Evacuee Property, Shri H.R. Nair. It appears that Shri Nair felt that it would be too much to hold that the decree-holder had been paid out of Court and the decree had been satisfied before the order of 2nd October, 1949, was passed. If a reference is made to the orders of the authorities below Shri Nair, who dealt with the matter, it would appear that the authorities had proceeded on pure conjectural grounds in coming to the finding that the decree had been satisfied out of Court. The learned counsel for the department could not give us any piece of evidence on the basis of which the finding of the lower authorities that the decree had been satisfied, could be supported. It is difficult to sustain a finding even in proceedings under Article 226 of the Constitution of India where such finding is based on no evidence but on pure conjectures. It appears, therefore, that Shri Nair rightly did not attach any importance to that finding and preferred to base his decision on the ground of limitation. I have already quoted the decision of Shri Nair in extenso and it appears that Shri Nair has misdirected himself on a pure question of law and as the error of law is apparent on the face of the record, his decision can be quashed under Article 223 of the Constitution of India.
I now propose to give my reasons how Shri Nair has completely gone wrong in his decision on the question of limitation. It is common ground that after the decree-holder had obtained the decree he applied to the executing court for its execution. In order to execute the decree the executing court transmitted the decree to the Collector and the Collector passed an order on the 30th September, 1940, granting a mustajari of the land in two villages for a period of 20 years to the decree-holder. It was in this manner that the decree was to be fully satisfied. The land was to return back to the judgment-debtor after the period of 20 years. It is necessary in this connection to refer to the various legal provisions under which the decree was sent by the civil court to the Collector for execution. The relevant provisions in the CPC are sections 68, 69, 70 and 71, and they are as follows :
The State Government may declare, by notification in the official Gazette, that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in, immovable property, shall be transferred to the Collector.
The provisions set forth in the third Schedule shall apply to all cases in which the execution of a decree has been transferred under the last preceding section.
(1) The State Government may make rules consistent with the aforesaid provisions-
(a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for retransmitting the decree from the Collector to the Court;
(b) conferring upon the Collector or any gazetted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector;
(c) providing for orders made by the Collector or any gazetted subordinate of the Collector or orders made on appeal with respect to such orders, being subject to appeal to, and revision by superior revenue-authorities as nearly as may be as the orders made by the Court, or orders made on appeal with respect to such orders, would be subject to appeal to, and revision by, appellate or revisional Courts under this Code or other law for the time being in force if the decree had not been transferred to the Collector.
(2) A power conferred by rules made under sub-section (1), upon the Collector or any gazetted subordinate of the Collector or upon any appellate or re-visional authority, shall not be exercisable by the Court or by any Court in exercise of any appellate or re-visional jurisdiction which it has with respect to decrees or orders of the Court.
In executing a decree transferred to the Collector u/s 68, the Collector and his subordinates shall be deemed to be acting judicially.
u/s 70, Rules have been framed by the Governor of the Punjab and the same are to be found in Part V, 1949 L. L. T. 41. Rule 2 provides for the transmission of the copies of record where land has been attached and is required to be sold in execution of a decree. Sub-rule (2) of this rule provides for fixation of a date for the appearance of the parties before the Collector. Rule 6 provides that the Collector is to take up the case on the date fixed by the Court under sub-rule (2) of rule 2. Rule 16 provides for arrangement short of sale and is in these terms:
Arrangement short of sale.
(1) If the Collector comes to the conclusion that all the liabilities of the judgment-debtor can be discharged without the sale of the entire land available for the purpose, he shall record his opinion with the reasons therefore, and shall proceed as laid down in paragraph 3 or 5 of the schedule.
(2) The Collector shall ordinarily follow the procedure laid down in paragraph 5 of the schedule, unless the summary enquiry held under rule 13 points to the conclusion that no complicated question requiring to be determined by the civil court is likely to arise.
Rule 42 provides the procedure for the delivering possession of the land and is in these terms:
Procedure for delivering possession of land.-In delivering possession to a purchaser or transferee in any other form, the Collector shall follow the following procedure:
(a) where the land is in the occupancy of the judgment-debtor or of some person on his behalf, or of some person claiming under a title created by the judgment-debtor subsequent to the attachment of the land, the Collector shall on the application of the purchaser or transferee, order delivery to be made by nutting such person or any person whom he may appoint to receive delivery on his behalf in possession of the land and if need be by removing any person who refuses to vacate the same.
(b) where the land is in the occupancy of a tenant or other person entitled to occupy the same, the Collector shall, on the application of the purchaser or transferee order delivery to be made by affixing a copy of the certificate or order in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, that the interest of the judgment-debtor in its entirety or to a limited extent, as the case may be, has been transferred to the auction purchaser or the other transferee.
Under rule 43 * * * objections regarding the delivery of possession shall be made to and decided by the Collector. Rules 44. 45 and 46 provide the procedure in case there is resistance or obstruction to possession of land by the judgment-debtor or by some person holding under the judgment-debtor as well as by strangers. Rules 47 and 48 provides for an application by a person other than the judgment-debtor when dispossessed and the decision of that application. Rule 53 provides that "after the Collector has completed his proceedings and informed the court as contemplated by paragraph 9 of the schedule, the record shall be consigned to the record room", and under rule 54 "on receipt of the information under rule 53, the Court shall make a note in column No. 22 of civil register No. X showing the date of the receipt of the intimation, and, if necessary, after sending for the record of the execution case from the record room shall proceed in the manner prescribed in paragraph 9(3) of the schedule." Under rule 1, sub-rule 5, schedule means third schedule of the Code of Civil Procedure. 1908. Under schedule III to the Code of Civil Procedure, 1908, paragraph 7(1) (b) provides that the Collector may, "if it appears that the amount with interest (if any) in accordance with the decree * * * may be recovered without such sale, raise such amount and interest (notwithstanding the original order for sale), then by letting on farm, or managing by himself or another, the whole or any part of such property for any term not exceeding 20 years from the date of the order of sale". Paragraph 11 of the aforesaid schedule provides that where the Collector has farmed out the judgment-debtor''s land for a period of 20 years, as in the present case, (the underlined portion is my own), "the judgment-debtor * * * shall be incompetent to mortgage, charge, lease or alienate such property or part except with the written permission of the Collector, nor shall any civil court issue any process against such property or part in execution of a decree for the payment of money". Sub-rules (2) and (3) of paragraph 11 are material for the purposes of this case and are quoted below in extenso :
(2) During the same period no civil court shall issue any process of execution either against the judgment-debtor or his property in respect of any decree for the satisfaction whereof provision has been made by the Collector under paragraph 7.
(3) The same period shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived.
It may be mentioned that sub-rule (3) of Order 21 rule 2 has been deleted, so far as Punjab is concerned, by section 36 of the Punjab Relief of Indebtedness Act, 1934. The result of this is that an adjustment of a decree, which has not been certified under Order 21, rules 1 and 2, may be otherwise proved.
A combined reading of the aforesaid provisions clearly establishes that once an application for execution is transferred to the Collector, it is he alone who is fully seized of the matter and no farther steps for the execution of the decree are called for in the executing Court. In the present case, the decree was to be fully satisfied by reason of the mustajari granted by the Collector for a period of 20 years. This mustajari was granted under paragraph 7(1) (b) (iv) of the Third Schedule to the Code of Civil Procedure. The land under the mustajari is made immune from any dealings by the judgment-debtor except with the written permission of the Collector. A civil Court cannot issue a process against it in execution of a decree for payment of money, vide paragraph 11 of the aforesaid Schedule. Thus, it would appear that all that the Collector had to do was to inform the Court, as contemplated by paragraph 9 of the Schedule and thereafter to consign the record to the record room (vide rule 53). On receipt of the information, under rule 53, the Court shall make a note in column 22 of the Civil Register No. 10 (Register of Execution of decrees) showing the date of the receipt of the intimation, and, if necessary, after sending for the record of the execution case from the record room, shall proceed in the manner prescribed in paragraph y(3) of the Schedule. The contingency to proceed under paragraph 9(3) did not arise in the present case because the decree was to be fully satisfied by reason of farm of the land for a period of 20 years. The civil Court does not come into the picture at all except for a very limited purpose, as indicated above. The delivery of possession in pursuance of the order under paragraph 7(1) (b) (iv) is also left to the Collector and so also the decision of objections as to the delivery of possession. Power is also given under the rules to the Collector to deal with cases where there is resistance or obstruction to the delivery of possession by the judgment-debtor or by any other person. In this connection, reference may be made to rules 40 to 46 framed u/s 70 of the Civil Procedure Code. The order of the Collector is made conclusive under rule 50 so far as the judgment-debtor is concerned. In the present case, the decree-holder was kept out of possession by the judgment-debtor and it is only when the judgment-debtor became an evacuee that the decree holder was able to obtain possession of the part of the land farmed out to him under the orders of the Custodian''s department.
It is, therefore, quite clear that no further steps had to be taken by the decree-holder in the civil Court in connection with the execution of his decree. In the circumstances of the present case, we will be justified in assuming that the provisions of law referred to above were complied with after the Collector had farmed out the land to the decree-holder for a period of 20 years. The argument, that no steps were taken'' by the decree-holder in the executing Court as required by Article 182 of Limitation Act, and that the execution of the decree had become time barred when Shri Parshotam Lal passed the order dated 2nd October, 1949, is pointless. The question of limitation could not and did not arise in the present case. The mode of satisfaction of the decree was the grant of a farm for 20 years. The dispute that remained between the decree-holder and the judgment-debtor was as to possession and that dispute had to be settled by the Collector. Before the Collector could do so, the land of the judgment-debtor had vested in the Custodian and it was the Custodian, Evacuee Property, who put the decree holder in possession of the farmed land. Thus, there could be no question that the order of Shri Parshotam Lal was illegal because he put into execution a time-barred decree. It appears to us that the import and the significance of the various legal provisions, which we have set out above, was not fully realized by the Custodian''s department and so also by the learned Single Judge. In face of the aforesaid provisions, the impugned order could not have been passed and also upheld under Article 226 of the Constitution of India.
Before parting with the case, we may mention that it was open to the department to hold on evidence that the decree had been satisfied by payment outside Court. The provisions of Order 21, rule 2, sub-rule (3) have been omitted in this State by section 36 of the Punjab Relief of Indebtedness Act, 1934. Therefore, adjustment out of Court, though not certified or recorded as required by Order 21, rule 2, sub-rules (1) and (2), could be proved. But the department was bound to give a finding as to satisfaction of the decree out of Court on evidence and not on mere conjectures and surmises as was done in the present case by the authorities below-Mr. Nair. It appears that Mr. Nair realized the difficulty in his way and, therefore, rested his decision against the petitioner on the question of limitation alone. We have already shown that the decision of Mr. Nair on the question of limitation is wholly erroneous. Therefore, the impugned order cannot be sustained.
For the reasons recorded above, we allow this appeal, set aside the decision of the learned Single Judge and quash the order of Mr. Nair and his subordinates and restore that of Mr. Parshotam Lal dated the 2nd October, 1949. The applicants will be entitled to their costs in this Court.
Falshaw, C.J.
I agree.