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Samuel Thyagaraja Kumars Vs. K. Sitarama Achar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1977Kant158; ILR1977KAR992; 1977(2)KarLJ1
ActsUrban Land (Ceiling and Regulation) Act, 1976 - Sections 27 and 27(1); Code of Civil Procedure (CPC), 1908 - Order 21, Rule 92
AppellantSamuel Thyagaraja Kumars
RespondentK. Sitarama Achar
Appellant AdvocateM. Gopalakrishna Shetty, Adv.
Respondent AdvocateU.L. Narayana Rao and ;S.S. Sripathy, Advs.
Excerpt:
.....the judgment-debtors did not pay the decretal debt. 27 of the act is not restricted to transfer inter partes, but applies to and encompasses execution sales as well. for the acquisition of such land in excess of the email, to regulate the construction of buildings on such land for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomeration to sub serve the common good'.the act provides for fixation of ceiling limit and question of land in excess of such ceiling limit. under the former the purchaser derives title through the vendor, and cannot acquire a better title than that of the vendor......thereafter, judgment-debtor no. 1 obtained leave to raise a fresh ground of objection based on the urban land (ceiling and regulation) act, 1976 (hereinafter called the 'act'). the objection was that the mortgaged properties being situate within the limits of mangalore municipality, are properties to which the 'act' applied; that s, 27 of the act contains a prohibition against transfer of any urban or urbanisable land without the previous permission in writing of the competent authority and that such permission not having, been obtained, the decree-holders were not entitled to bring the mortgaged properties to sale.4. the learned civil judge heard the said objections and by a considered order overruled the same holding that s. 27 of the act is inapplicable to execution sales.5. aggrieved.....
Judgment:

G.K. Govinda Bhat, C.J.

1. This appeal by judgment-debtor No. I in a mortgage-decree is directed against the order dated 6th October 1976 made in Execution Case No. 63 of 1975 on the file of the Court of the Civil Judge, Mangalore, South Kanara, overruling the appellant's objections for sale of the mortgaged properties.

2. Respondents I to 4 obtained a decree on the basis of three mortgages in 0. S. No. 63 of 1973 on the file of the Court of the Civil Judge, Mangalore, South Kanara, A preliminary decree was passed on the basis of a joint memo filed by the parties on 26-3-1974. Under the terms of the said decree, judgment-debtors were liable to pay to the decree-holders a sum of Rs. 1,00,000/- with interest thereon at the rate of 6 % per annum from the date of suit till the date of payment besides costs of the suit. Time was allowed for payment till 26-9-1974, Judgment-debtors having failed to Pay the decretal amount, the decree-holders applied for a final decree, and a final decree was passed on 17-1-1975. Even after the final decree, the judgment-debtors did not pay the decretal debt. Consequently the decree-holders were compelled to sue out execution seeking sale of the mortgaged properties.

3. Judgment-debtors filed their objection s separately raising a contention, inter- alias that the first Judgment-debtor is a debtor entitled to the benefits of the Karnataka Agricultural Debtors Relief Act, 1966. That objection, however, was not pressed at the hearing. Thereafter, judgment-debtor No. 1 obtained leave to raise a fresh ground of objection based on the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called the 'Act'). The objection was that the mortgaged properties being situate within the limits of Mangalore Municipality, are properties to which the 'Act' applied; that S, 27 of the Act contains a prohibition against transfer of any urban or urbanisable land without the previous permission in writing of the competent authority and that such permission not having, been obtained, the decree-holders were not entitled to bring the mortgaged properties to sale.

4. The learned Civil Judge heard the said objections and by a considered order overruled the same holding that S. 27 of the Act is inapplicable to execution sales.

5. Aggrieved by the said order, judgment-debtor No. 1 has preferred this appeal.

6. Sri M. Gopalakrishna Shetty, learned counsel for the appellant. Pressed the same ground of objection before us in this appeal. He submitted that S. 27 of the Act is not restricted to transfer inter partes, but applies to and encompasses execution sales as well. The merit of this contention requires to be decided in this appeal.

7. In order to understand the scope of the bar of transfers under S. 27 of the Act, it is necessary to refer to the pre amble of the Act. The object of the Act as stated in the preamble is to 'provide for the imposition of a ceiling on vacant land in urban agglomerations; for the acquisition of such land in excess of the Email, to regulate the construction Of buildings on such land for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomeration to sub serve the common good'. The Act provides for fixation of ceiling limit and question of land in excess of such ceiling limit.

8. Section 27 of the Act is found under Chap. IV, The head of the said Chapter is 'REGULATION OF TRANSFER AND USE OF URBAN PROPERTY.' Section 27, which is the material section, reads:

'27. (1) Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of sub-see. (3) Of Section 5 and sub-section (4) of S. 10, no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years or otherwise, any urban or urbanisable land with a building (whether constructed before or after the commencement of this Act) or a portion only of such building for a period of ten years of such commencement or from the date on which the building is constructed, whichever is later, except with the previous permission in writing of the competent authority.

(2) Any person desiring to make a transfer referred to in sub-s. (1), may make an application in writing to the competent authority in such form and in such manner as may be prescribed.

(3) On receipt of an application under sub-s. (2), the competent authority may, after making such inquiry as it deems fit, by order in writing, grant or refuse to grant the permission applied for.

Provided that the competent authority shall not refuse to grant the permission applied for unless it has recorded in writing the reasons for doing so and a copy of the same has been communicated to the applicant.

(4) Omitted as unnecessary.

(5) Omitted as unnecessary.

(6) Omitted as unnecessary.'

(Underlining is ours)

The word 'transfer' has not been defined in the Act. But the word 'Person' has been defined in S. 2(i) to include an individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not.

9. Section 27 is not a total bar against transfer of urban property. It requires the obtaining of previous permission in writing of the competent authority before a person makes a transfer by way of sale, mortgage, gift, or lease for a period exceeding ten years of any urban or urbanisable land. The procedure for obtaining permission is provided by sub-s. (2) of S. 27.

10. A reading of sub-s. (1) of S. 27 demonstrates the inappositeness of the contention that an execution sale is a transfer coming within the scope of the said section. The definition of the word 'person' in S. 2(i) does not include a Court. When the Act says that 'no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise, any urban or urbanisable land', the Parliament imposed a restriction on a transfer by act of parties. The object of the Parliament in making such a provision is quite obvious; apparently it was intended to prevent persons owning urban or urbanisable land in excess of the ceiling limit from contravening the ceiling provision of the Act. There is a difference between a transfer by operation of law and transfer by act of parties. The purchaser at a court sale acquires title by operation of law and at such sales title is transferred without a registered deed. The Court merely issues a Sale Certificate. In Dinendronath Sannyal v. Ramcoomar Ghose, (1881) 8 And App 65 at p. 75 (PC) the Judicial Committee of the Privy Council said:

'There is a great distinction between a private sale in satisfaction of a decree and a sale in execution of a decree. In the former the price is fixed by the vendor and purchaser alone; in the latter the sale must be made by public auction conducted by a public officer, at which the public are entitled to bid. Under the former the purchaser derives title through the vendor, and cannot acquire a better title than that of the vendor. Under the latter the purchaser, notwithstanding he acquires merely the right, title and interest of the judgment-debtor, acquires that title by operation of law adversely to the judgment-debtor, and freed from all alienations of in cumbrances effected by him subsequently to the attachment of the property sold in execution.'

Section 27 has, therefore, no application to execution sales and its scope is limited to transfer inter partes. Therefore, the learned Civil Judge was right in overruling the objection of the appellant and, directing the execution to proceed.

11. Accordingly, the appeal fails and is dismissed, but without costs.

12. Appeal dismissed.


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