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Bulaqi Dass Vs. Pt. Gulab Chand - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All23
AppellantBulaqi Dass
RespondentPt. Gulab Chand
Excerpt:
.....referred to as an execution proceeding. those two rules clearly indicate what is meant by an execution process, and i think there can be little doubt that an order passed by a court executing the decree for sale which is carried out by a ministerial officer of the court amounts to an execution process.mulla, j.1. this is an appeal from an order passed by the learned civil judge of agra setting aside a sale held in an execution proceeding. it arises out of the following circumstances. the appellant bulaqi dass held a decree for ejectment, arrears of rent and costs against the respondent, gulab chand, and in execution of that decree he put to sale an oil press belonging to the respondent and purchased it himself. this sale took place on 8th april 1936. on that very date, but after the sale had been hold, the respondent made an application to the execution court in which he alleged that he had made an application under section 4, encumbered estates act, which had been admitted by the collector and upon which an order under section 6 had been passed a rider that act, and upon this.....
Judgment:

Mulla, J.

1. This is an appeal from an order passed by the learned Civil Judge of Agra setting aside a sale held in an execution proceeding. It arises out of the following circumstances. The appellant Bulaqi Dass held a decree for ejectment, arrears of rent and costs against the respondent, Gulab Chand, and in execution of that decree he put to sale an oil press belonging to the respondent and purchased it himself. This sale took place on 8th April 1936. On that very date, but after the sale had been hold, the respondent made an application to the execution Court in which he alleged that he had made an application under Section 4, Encumbered Estates Act, which had been admitted by the Collector and upon which an order under Section 6 had been passed a rider that Act, and upon this allegation he claimed that in view of Section 7, Encumbered Estates Act, the order issued by the Court for sale of the property in question and the Kale carried out in pursuance of that order had become null and void. It is not denied that some time in February 1936 an order cinder Section 6, Encumbered Estates Act, had been passed by the Collector upon an application made by the respondent. The learned Civil Judge allowed the respondent's contention to prevail and consequently set aside the sale on 14th Aprils 1936. Hence the present appeal.

2. The learned Counsel for the appellant invited my attention in the beginning of his argument to the fact that some time-after the date on which the sale in question was held, the Collector made a reference to the Board of Revenue stating that the order under Section 6, Encumbered Estates Act, had been passed inadvertently upon the-respondent's application under Section 4 of that Act and upon that reference the Board of Revenue cancelled the order under Section 6,, Encumbered Estates Act. An argument was based upon this fact to the effect that the whole basis of the objection taken by the respondent, which has been allowed by the learned Civil Judge, is taken away by the final order passed by the Board of Revenue. I am unable to accept that contention because on the date on which the learned Civil Judge passed the orders setting aside the sale, he was bound by the-order passed by the Collector under Section 6; Encumbered Estates Act, which was then in force. The learned Civil Judge could not have gone behind that order and could not I possibly have considered the question; whether it had been passed inadvertently. I am therefore of the opinion that the learned Civil Judge was right in taking that order into account and in proceeding upon, that basis to set aside the sale in question. The next argument on behalf of the appellant is that Section 7, Encumbered Estates Act, only provides that an execution proceeding. shall be stayed, but does not lay down that it shall become null and void. Now Section 7 run as follows:

When the Collector has passed an order under Section 6, the following consequences shall ensue : (a) all proceedings pending at the date of the said order in any Civil or Revenue Court in the United Provinces, in respect of any public or private debt to which the landlord is subject, or with which, his immovable property is encumbered except an appeal or revision against a decree or order, shall be stayed, all attachments and other execution processes issued by such Court and then in force in respect of any such debt shall become null and void and no fresh process in execution shall, except as hereinafter provided, be issued....

3. It is to be noted that the latter part of the Section clearly provides that all attachments and other execution processes shall, become null and void. But it is argued that there is no reference in this part of the Section to any proceeding as distinguished from a process and it is contended that a sale held in execution of a decree is not an execution process, but a proceeding -which can only be stayed under Section 7, Encumbered Estates Act, but does not necessarily become null and void. In my view, this contention is not acceptable. When an application is made for execution of a decree, it marks the institution of a proceeding. All the steps taken by the Court and all orders passed by it from time to time in connexion with that application, until the decree is satisfied or the application is dismissed, constitute one proceeding which is generally referred to as an execution proceeding. In my view, the orders passed by the Court from time to time with the object of executing the decree which are carried out by the ministerial officers of the Court are all execution processes within the meaning of Section 7, Encumbered Estates Act. The learned Counsel for the appellant tried to argue that the word 'process' was merely confined to an order for attachment of property or an order for the arrest of a judgment-debtor. That is, in my opinion, putting a very narrow construction upon the expression 'execution processes' as used in Section 7. The matter is however concluded in my judgment by reference to Order 21, Rules 24 and 25, Civil P.C. Those two rules clearly indicate what is meant by an execution process, and I think there can be little doubt that an order passed by a Court executing the decree for sale which is carried out by a ministerial officer of the Court amounts to an execution process. The result therefore is that the lower Court must be deemed to have acted rightly in holding that the sale in question was an execution process which had become null and void in view of Section 7, U.P. Encumbered Estates Act. There is consequently no reason to interfere with the order passed by the lower Court setting aside that sale. The appeal is therefore dismissed. The respondent being absent, no order is made as to costs.


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