Jaikishen and Others vs Thotaram and Another

Naik, C.J.—This is a second appeal on behalf of the decree-holder in an execution proceeding, and the point to be decided is whether the Hyderabad Prevention of Agricultural Land Alienation Act is applicable to the case. The relevant facts are as follows:

A decree in favour of the Appellant was passed on the basis of a compromise on Mehir 18, 1345 Fasli: 24-8-1936, A. D. By it the decretal amount of Rs. 5,220/- was made payable in ten instalments and in case of default of two instalments, consecutive or otherwise, the decree-holder became entitled to recover the possession of the lands in suit as owner by the execution. It is contended on behalf of the Appellant that at the date of the decree the judgment-debtor was not a member of the tribes which have been declared as ''agricultural'' under the Act, and only on Thir 26, 1347 Fasli: 31-5-1938, his tribe which is ''Pardesi'' has been declared as ''Protected''. This date of the declaration is not challenged in the appeal. Although the execution proceedings were started after that on Thir 20, 1348 F: 26-5-1939, yet in the application the non-payment of the two instalments on which the decree-holder became entitled to possession of the property are given on Ardebehist 31, 1344 and 1347 F: 5-4-1935 and 1938 A. D. Both of them are prior to the judgment-debtor''s, tribe being declared ''protected'' under the Act. These facts arc also not challenged.

The contention of the Appellant is that it is not the date of the execution petition which is to be taken into consideration for determining whether the Prevention of Agricultural Land Alienation Act was applicable; but it is really the date on which the decree-holder got vested rights under the decree. It is contended on behalf of the judgment-debtors that the compromise on the basis of which a decree was passed amounted to a mortgage by conditional sale and the decree-holder''s prayer of being given proprietary possession u/s 10, Sub-section (3) of the Act cannot be granted by the Civil Court; but the decree has to be transferred to the revenue Court. Both the lower Courts have upheld the contention of the judgment-debtor.

We think that the Appellant''s contention is correct. It cannot be said that the Notification declaring the judgment-debtor''s tribe to be agricultural has retrospective effect. This has been held in Miran Baksh v. Milkhl Ram AIR 1923 Lah 673 , in connection with the similar provision of the Punjab Land Alienation Act and the reasonings apply to this appeal also. Then it appears to me to be the intention of the parties that the remedy by an execution alone should be open to the decree-holder, which has become vested as soon as the two instalments due were not paid by the judgment-debtor, and the later Notification applying the Act to the judgment-debtor can not affect the vested right. The appeal is, therefore, allowed, the judgments of both the lower Courts set aside and the case is remanded to the Court below to be proceeded with according to the merits of the case. The parties will bear the costs of this appeal.

Mohd. Ahmed Ansari, J.

I agree.