1. This is an appeal in execution proceedings, and the question is whether an executing Court can refuse to execute a consent decree on the ground that to do so would be in contravention of Section 1 of the Bhagdari and Narwadari Act (Bom. V of 1862).
2. The plaintiffs, now respondents, are the owners of lands in a bhagdari village. They mortgaged two sets of properties described as B and C to the defendant appellant by three mortgages, one in 1923, one in 1926 and one in 1929. The plaintiffs remained in possession of the B properties under a rent-note. The mortgagee got possession of the C properties. In 1931 he filed two suits for arrears of rent and possession of the B properties, and in 1932 the plaintiffs filed a suit for a declaration that the mortgage was void as contrary to the Bhagdari Act and for possession of the C properties.
3. Section 1 of the Bhagdari Act provides as follows:--
No portion of a bhag or share in any bhagdari or narwadari village other than a recognised Sub-division of such bhag or share shall be liable to seizure, sequestration, attachment or sale by the: process of any civil Court, and no process of such Court shall be enforced so as to cause the dismemberment from any such bhag or share or recognised Sub-division thereof, of any homestead, building-site (gabhan) or premises appurtenant or appendant to such bhag or share, or recognised subdivision thereof.
4. Section 2 provides that in case any process of a civil Court has issued in contravention of the provisions of Section 1, the Collector may move that the process be set aside or quashed, and if it appears from the evidence adduced by the Collector that the case falls within the Act, the civil Court shall set aside or quash the process. Section 3 prohibits the alienation, assignment, mortgage etc., of any portion of any bhag.
5. The litigation between the parties was disposed of by a compromise in accordance with which a decree was made on January 5, 1933. The consent decree determined the amount due under the mortgage deeds and made it payable by installments. It directed that the B properties were to remain in possession of the plaintiffs, who were also to get possession of the C properties after April 26, 1933. Then it went on to provide that in case they failed to pay three of the installments the defendant-mortgagee was to recover possession of all the properties, i.e. both the B and C properties, and should get possession if necessary by instituting execution proceedings. The properties were then to remain in the defendant's possession until the whole balance was paid.
6. It appears from the pleadings in the suit filed by the plaintiffs in which the consent decree was passed that they alleged that the mortgages related to Sub-divisions of bhags and were therefore in contravention of the Bhagdari Act and illegal and void. In view of the case set up by the plaintiffs it is clear that the Court ought to have inquired into the facts, and if it had found, as it must have found, since there is no dispute about this fact, that the lands in question formed unauthorised' Sub-divisions of bhags, it should have refused to recognise the compromise as being an unlawful transaction. This, however, was not done. The plaintiffs got possession of the B and C properties but they failed to pay the installments and the defendant brought a darkhast to get possession of both.
7. The plaintiffs raised the same plea as before and contended that the decree was a nullity. Issues were raised as to whether it was open to the opponents, i.e. the plaintiffs, to contend in execution proceedings that the decree was a nullity and hence not executable, and if so, whether the mortgage deeds on which the decree was based related to unrecognised portions of bhag properties and whether the darkhast for recovery of possession thereof was maintainable though the decree was passed with plaintiffs' consent. The trial Court held that it was not open to the plaintiffs to ask the Court to inquire into the nature of the properties at the date of the mortgage or the decree, but that when, possession was sought in execution it was open to them to show that the properties formed portions of bhags. The revenue records showed that they did. The darkhast was accordingly dismissed, and in appeal the District Judge confirmed the order.
8. Learned counsel who appears for the appellant-defendant here has argued that it must be assumed that the Court which executed the compromise decided by implication that the properties did not form unauthorised subdivisions. But apparently there was no reference to this matter in the-compromise and the point was not decided by the Court. It may have been overlooked or the parties for their own convenience may have decided to say nothing about it. There is no reason why we should assume a finding contrary to the facts of the case.
9. Then Mr. Desai has argued that the plaintiffs are estopped from pleading the Bhagdari Act and he relies on two cases, Chhagnlal v. Bed Harkha I.L.R. (1909) 33 Bom. 479 and Basangouda v. Basalingappa (1935) 38 Bom. L.R. 593 where it was held that the plea of estoppel by res judicata may prevail even when the result of giving effect to it may be to sanction what is illegal, in the sense of being prohibited by statute. But in neither of those cases was there any question of the Court itself being held bound to take any action contrary to the express words of a statute, and in our opinion no rule of estoppel between parties can compel the Court to do so. In that connection I may refer to Gadigeppa v. Balangowda : (1931)33BOMLR1313 , where a full bench of which I was a member had to consider whether a minor can be stopped from setting up infancy in an action founded on contract. The learned Chief Justice said (page 1334):--
Section 115 of the Indian Evidence Act does not affect in any way the validity of evidence. It does not provide that what would be sufficient proof in one case will not be sufficient in another; it only provides that in certain circumstances and as between the parties no evidence of certain things shall be allowed to be given; But where the evidence to be excluded goes to show that the Court has no jurisdiction to make the order which it is asked to make, it seems to me that the Court must, for its own protection, look at the evidence. It is not really looking at the evidence for the purpose of defeating one party, it is looking at the evidence for the purpose of seeing that its own process is not abused.
10. In the course of my judgment I said (page 1337):--
The rule of estoppel inter parties cannot preclude the Court itself from taking cognizance of the true facts, or compel it to give legal effect to a transaction which the legislature has expressly declared to be void.
11. It is urged that the executing Court cannot go behind the decree, and a number of cases have been cited in that connection. But there is not really any question of doing that here. The question is whether the executing Court is compelled or permitted to execute the decree when execution is expressly prohibited by law. The general rule no doubt is that, when a proper application is made for the execution of a decree which is not a nullity, the Court cannot refuse to execute. But here we have a special statutory prohibition which is addressed to the Court itself and makes execution illegal, quite apart from whether the decree is good or bad as a decree. The maxim generalibus specialia derogant must therefore be applied. It may be pointed out that Section 2 of the Act would in most cases make it futile for the Court to order execution of a decree in contravention of the terms of Section 1. If we had felt bound to make such an order we should also have felt bound to draw the attention of the Collector to the matter. But for the reasons which I have given we are of opinion that the executing Court is not bound to order execution under the circumstances.
12. On a question of construction Mr. Desai argued that this case does not come under Section 1 but under Section 3 of the Act, and he said that the relief claimed by his client does not amount to seizure or sequestration within the meaning of Section 1. The learned District Judge has referred to the dictionary meanings of these words and we agree that, as the defendant is asking the Court to restore possession of these properties to him, that is to say take possession from the plaintiffs and deliver it to him, that must be said to amount to seizure, which we think must include taking into possession or taking possession under a warrant or legal right.
13. We think therefore the Courts below were right in dismissing the darkhast and we dismiss this appeal with costs.