Parameshwar Prasad vs Walji Chhatri

Rowland, J.—This is an appeal by the judgment-debtor. He mortgaged his tiled house standing on Hamid''s settlement plots Nos. 2425 and 5417 to the opposite party. The opposite party sued to foreclose the mortgage and obtained a decree for foreclosure and possession. At the stage of delivery of possession the appellant objected that the property in suit was his occupancy holding and was not transferable, u/s 46, Central Provinces Tenancy Act. The Munsif allowed the application but this decision was reversed by the subordinate Judge of Sambalpur.

The decree-holder had resisted it on two grounds: first it was not maintainable and the executing Court could not go behind the decree; and secondly the lands were not the occupancy tenancy of the objector. The same points were taken before the subordinate Judge in appeal and the contention as to non-maintainability failed but the other contention of the decree-holder succeeded with the result that he allowed the appeal and dismissed the objection against the execution.

The objector appellant is not the recorded raiyat. The lands stood in the settlement record in the names of Bhagirathi and others from whom the land was purchased by Baldeo Ahir. Thereafter the present judgment-debtor objector bought the lands from Baldeo Ahir on 4th July 1930. The subordinate Judge holds that the lands have ceased to be connected with any agricultural holding, that they are residential house property and that Section 46 of the Act does not apply at all.

The argument addressed on behalf of the appellant has not in my opinion succeeded in displacing this finding which gets strong support from the fact that the holders of this property, that is to say the objector himself and his predecessors-in-title, have been treating this land as non-agricultural and transferable land. The Subordinate Judge having held that it is so, I think that finding must stand.

As regards the other point that the objection was not maintainable the Subordinate Judge relied on Manu Mandal v. Jugal Kishore (37) 18 P.L.T. 430 and Lakshmi Bibi Kujrani v. Atal Bihari Haldar (13) 40 Cal. 534 both of which were cases in which a mortgagee had sued to bring the mortgaged property to sale and a decree had been passed for sale of the property. The substance of the decisions was that, decree or no decree, when there was an express prohibition in the statute against holding a sale of a property, the Court had no jurisdiction to hold such a sale even if a decree had been passed.

But I must point out that the present is not a case of any decree having been passed for the sale of any property. If indeed there had been a decree for sale of the right of an occupancy tenant of his holding, it would be in contravention of Section 46(2), Central Provinces Tenancy Act, and the executing Court would be confronted with the last words of that Sub-section "nor shall such right be sold in execution of any decree or order;" but the decree under execution in this case is not a decree for sale but a decree for possession and there is no prohibition in the statute against executing such a decree by delivery of possession.

I am of opinion that there was nothing in the statute prohibiting the execution of the decree.

The appeal fails and is dismissed with costs.