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Judgment
H.N. Kapoor, J.—This revision is directed against the order dated 7-12-1976 of the I Addl. District Judge, Rampur in Misc. Case No. 15 of 1976 dismissing the objections filed by the State under Order 21, Rule 58 Code of Civil Procedure.
The facts giving rise to this revision briefly stated are as follows: A Cooperative Society known as the Bahal Co-operative Farming Society was formed in 1952 for purposes of cultivation. It was registered under the Cooperative Societies Act, Two hundred and fifty acres of land was allotted to the Society by the Collector on 29- 11-1932 for the purpose of cultivation. The primary object of the aforesaid Society was to do cultivation itself. Initially there were fifteen members. It was entered in the revenue papers as tenure-holder, bhumidhar and continued to be so throughout. It would thus be deemed to be registered as a Co-operative Farming Society u/s 77(1)(b) after coming into force of the U.P. Co-operative Societies Act, 1965 (U.P. Act No. XI of 1966). This Act came into force on 26-1-1968. The Society took loan from the District Co-operative Bank on 4-5-1967. It then executed a mortgage-deed mortgaging the entire land which the Society possessed. That mortgage deed is on the record and is paper No. 7-C/1. It clearly provides that the loan was given to the Society for irrigation, land development and implements and for no other purpose whatsoever. On the basis of this mortgage-deed, the Society continued to take loan from the bank subsequently also. The Society failed to repay the loan and the matter was then referred to the arbitrator u/s 70 of the Co-operative Societies Act, 1965. The award was given on 21-10-1972 by the Addl. Registrar, Co-operative Societies, who was appointed the sole arbitrator. According to this award, the total amount of Rs. 2,33516.59 Np. as principal and Rs. 58,524.89 Np. as interest was to be realised from the Society by the bank. Total amount of Rs. 2,92,041.48 Np. was thus to be realised from the Society till the date of the award, that is, 21-10-1972. Proceedings for realisation were first taken before the Collector, who got the entire land of the Society attached on 1-5-1974. The District Co-operative Bank then moved an application before the Civil Court on 13-11-1975 filing the award and praying that the same be executed as a decree of the court. Out of the entire land, 160 acres of the land wa� sold on 15-1-1976 by the executing court, that is, the District judge, Rampur in 20 lots. It was sold for a total sum of Rs. 3,93,000/-.
Meanwhile proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act No. 1 of 1961) had started in respect of the land owned by the Society. The Prescribed Authority declared 220 acres of land owned by the Society as surplus land under the aforesaid Act in July, 1975. The appeal filed by the Society was dismissed on 2-9-1975. Writ petition No. 10,279 of 1975 was then filed by the Society on 1-10-1975 against the appellate order dated 2-9-1975. It was admitted on 1-10-1975 and a learned Single Judge passed the interim stay order as follows:
Issue Notice.
Meanwhile, the Petitioner may not be dispossessed from the land which has been declared surplus provided it deposits with the Prescribed Authority concerned a sum of Rs. 40,000/- (rupees forty thousand only) by the 15th of December each year, the first deposit to be made by the 15 th December, 1975. In case of default the stay order shall stand automatically discharged. The Respondent State shall be entitled to withdraw all deposits and to appropriate them as compensation for any loss that it may have suffered by reason of the stay order in case the Writ petition fails.
This writ petition is still pending. The State Government then filed objections under Order 21, Rule 58 CPC 31-1-1976 in respect of the attachment and sale of 160 acres of land mainly on the ground that that land had been declared surplus and as such it vested in the State and that the Society had no saleable interest in that land. Those objections were allowed on 27-4-1976 in Misc. case No. 15 of 1976. Civil Revision No. 902 of 1970 was then filed against that order. That came up before me. i had remanded the case to the Addl. District Judge concerned by my order dated 28-9-1976 for considering the matter afresh according to law specially with reference to Section 10-A of the U.P. Agricultural Credit Act, 1973, as amended by U.P. Act No. XIX of 1973 I may state in the very beginning that it is wrongly stated in that order that 160 acres of land had been auctioned for about seventy five thousand rupees. As already stated above, the land had been auctioned for about Rs. 3,93,000/-.
The first Addl. District Judge, Rampur then heard the matter again and after carefully considering all the points, rejected the objections under Order 21, Rule 58 CPC by his order dated 7-12-1976. Feeling aggrieved, the State has filed this revision. On the last occasion, 1 had ordered it to be listed with the record of writ petition No. 10,729 of 1975. But that writ petition itself had not been listed before me for hearing. The learned Addl. Advocate General stated that it would have been proper if the writ petition could be heard together along with this revision. He stated that this revision would become infructuous in case the writ petition was allowed. In my opinion, it was possible to dispose of this revision independently of the writ petition on the assumption that 220 acres of land had been declared as surplus. Even on the last occasion, Civil Revision No. 902 of 1976 was heard independently of the writ petition. Even the present revision was heard by another learned Judge for sometime independently of the writ petition and he had then released it. Points Mos. 4, 5 and 6 which were raised before the lower court, being the main point and which have been reagitated before me are as follows;
Whether the State has a vested interest in the land attached and sold and the judgment debtor was in possession of the land on behalf of the State and in trust for the State?
Whether the judgment-debtor had no saleable interest?
Whether the provisions of Section 10-A of the U.P. Agricultural Credit Act, 1973 had over-riding effect over all the provisions of U.P. imposition of Ceiling on Land Holdings Act?
The lower court decided all these points against the State and in favour of the judgment debtor. Sri S.C. Khare, learned Counsel for the same argued that there was no jurisdictional error in the judgment of the lower court and as such no interference is called for in revision even if it could be held that the view of law taken by the lower court was erroneous. On the other hand, learned Addl. Advocate General has argued that by deciding these points erroneously, the lower court has acted with material irregularity in the exercise of its jurisdiction in upholding the auction sale and not setting aside the same. He has assailed the findings of the executing court on points Nos. 4 and 5 on the ground that the lower court had not taken into consideration the amended Section 14 of the U.P. Imposition of Ceiling on Land Holdings Act. It came into force with effect from 6-8-1976 by means of Ordinance No. XXIII of 1976 which was published on 6-8-1976 and was then incorporated in the Amending Act No. 56 of 1976 which was published on 13-12-1976. The amended Section 14(1) and (3) are as follows:
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Prior to the amendment, Section 14(1) and (2) were as follows:
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The lower court took the view on the basis of the unamended section that the notification u/s 14 had not been issued by the State Government and as such the land bad not vested in the State and the Society still had saleable interest in the land, it also observed that the High Court in the writ petition had stayed delivery of possession only and not issued any notification u/s 14 and as such, it was possible for the State to have issued the notification u/s 14 of the Act. On the basis of the amended section, learned Addl. Advocate General has argued that the State could take possession after the decision of the appeal u/s 13 and it was not necessary to issue any notification and that it could evict any person found in occupation. It would imply that any transfer made after the proceedings were over u/s 13, would be invalid. He has thus argued that the Co-operative Society had no saleable interest in the land and as such the property which had been declared as surplus could not have been auctioned in execution of the decree on the basis of the award. Sri Khare has, however, argued that old Section 14 would apply as the auction sale had taken place on 15-1-1976 and the amended Section 14 came into force with effect from 6-8-1976. In the alternative, he has argued that the land could vest in the State only after possession was taken under the amended Section 14 and when the State was not in a position to take possession, there could be no vesting. In my opinion, for the purpose of this case, it is not necessary to give any definite finding on this point. The fact remains that it is not a case of voluntary sale but the land had been auctioned by the court and as such, transfer, if any, had taken place by operation of law. The point to be decided is whether there was any absolute bar in the court holding such an auction sale. It takes us to the consideration of point No. 6 of the lower court.
Section 10-A of the U.P. Agricultural Credit Act, 1973 was enacted u/s 11 by Ordinance of 1975 which was subsequently replaced by U.P. Act No. XIX of 1975. It has been given effect to from January 25, 1975. It reads as follows:
10-A. Removal of bar to attachment and sale by process of Court-Nothing in any law shall prevent in any manner a bank from causing any land or any interest therein charged or mortgaged to it by an agriculturist to secure any financial assistance, to be attached and sold through a Civil Court and applying the proceeds of such sale towards all moneys due to it from that agriculturist including the costs and expenses as may be awarded by the court.
In the present case, the auction sale took place after the enforcement of this section. It cannot be disputed that the District Co-operative Bank is not a bank within the meaning of Section 10-A. No doubt, half-hearted argument was advanced towards the close of the arguments that in case the bank was financing money for agricultural development, it would be Land Development Bank and as such would not be covered by the definition of ''Bank'' u/s 2(c)(v) as inserted by the same Ordinance. The Land Development Bank is defined u/s 2-C of the U.P. Co-operative Land Development Banks Act, 1964 (U.P. Act No. XVI of 1964) which is as follows:
2(c) ''Land Development Bank'' or ''Co-operative Land Development Bank'' means a Co-operative Society registered under the Co-operative Societies Act for the time being in force in Uttar Pradesh admitted as a member of the State Land Development Bank and having as its main object the advancement of loans to its members on the mortgage of Immovable property generally for improvement of land and other productive purposes connected with agriculture.
In the present case there is nothing to show that the District Cooperative Bank, Rampur was a member of any State Land Development Bank. In fact, no such argument was raised in the lower court that it is not covered by the definition of ''bank''. It is possible for any bank to advance loan on the, basis of a mortgage. It cannot be said that any bank ceases to be covered by the definition of ''bank'' under the U.P. Agricultural Credit Act, 1973 as soon as it advances loan on the basis of a mortgage deed.
The learned Addl. Advocate General, however, has vehemently argued that protection u/s 10-A is given to an individual agriculturist and not to a Co-operative Society. On this point his arguments are twofold. Firstly, he has argued that there is separate provision in Chapter V for realisation of dues from the Co-operative Society under the U.P. Agricultural Credit Act, 1973 and as such Section 10-A which is in Chapter IV does not apply to the case of a Co-operative Society. Secondly, he has pointed out that the Co-operative Society as defined u/s 2(d) means ''Co-operative Society'' registered or deemed to be registered under the Uttar Pradesh Cooperative Societies Act, 1965, the object of which is to provide financial assistance to its members, and includes a co-operative land development bank. His argument ia that this Act will, therefore, apply to only such Co-operative Society which is to provide financial assistance and not to a Co-operative Society, the object of which is to do cultivation and undertake other agricultural operations itself. In Section 3(17) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, the definition of the word ''tenure-holder'' is given as follows:
"tenure-holder" means a person who is the holder of a holding, but does not include....
Section 5(1) provides that no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. Sub-section (2) thereof provides that nothing in Sub-section (1) shall apply to land held by the following clauses of persons namely-
(a) the Central Government, the State Government or any Local Authority or a Government Company or a Corporation;
(b) a University;
(c) an intermediate or degree college imparting education in agriculture or a post-graduate college;
(d) a banking company or a cooperative bank or a co-operative land development bank;
(e) the Bhoodan Yagna Committee constituted under the U.P. Bhoodan Yagna Act, 1952.
The intention of the Legislature is thus clear that even a corporate body could be treated as a tenure-holder under the Act. The Behal Co-operative Farming Society, therefore, could certainly be treated as an agriculturist being tenure-holder for purposes of Section 10-A. This section was meant for the protection of the bank. There can be no doubt that if 220 acres of land which belonged to the Bahal Co-operative Farming Society are declared to be surplus and the Society is left with only 28 acres of land, it would certainly not be possible for the Society to pay the entire debt of the bank from this meagre possession of land with it. It is significant that the Society itself had not raised any objection to the sale. I am, therefore, of the opinion, that u/s 10-A it was possible for the executing court to auction the land even after it was declared surplus.
Towards the close of the arguments learned Addl. Advocate General raised entirely a new point which was neither taken in the grounds of revision nor was it advanced before the lower court. He argued that under Order 21, Rule 64 CPC it was not possible for the executing court to sell more land that was necessary for the purpose of realising the amount under tbe decree. In support of this contention he has placed reliance on the case of Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma and Others, . The fact remains that the land was auctioned in 20 lots on the same day. In case any such objection was raised before the executing court at the earliest stage, it could have been possible for the executing court not to sell more property than what was absolutely necessary for satisfying the decree. In case such an objection was raised before the executing court, it could have also decided that objection. Sri Khanna, learned Counsel for the Bank has also pointed out that after 20-10-1972 which was the date of the award, interest amounting to about rupees one lac has become due to the bank and that interest too will have to be paid out of the amount for which the land has been sold. Under these circumstances, I am not prepared to allow this new point to be raised at this stage. No doubt, whatever amount is in excess after discharging the entire dues of the bank, shall remain in deposit and will be paid to the rightful owner in accordance with the decision in the writ petition.
In the result the revision is dismissed with costs to the contesting opposite party. The stay order dated 12-1-1977 is vacated.