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Sheo Bandhan Pande Vs. Kishan Prasad Pande and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All45
AppellantSheo Bandhan Pande
RespondentKishan Prasad Pande and ors.
Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under..........of 1934. the last mentioned act was passed with the object of regulating 'the sale of agricultural land in execution of civil court decrees against agriculturists,' and by clause (a) of section 4 of that act a decree-holder was given the option to 'take' the agricultural land or a portion of the agricultural land of the judgment-debtor in full satisfaction of the decree at a valuation fixed by the collector in accordance with the provisions of section 3 of the act. in case a decree-holder decided to exercise this option the collector was authorized by section 5 to transfer the land to him in full satisfaction of the decree.2. in the present case it is admitted that the respondent decree-holders exercised the option given to them by clause (a) of section 4 and the collector transferred.....
Judgment:

Iqbal Ahmad, J.

1. The question of law that arises for decision in the present appeal is whether a right of pre-emption under the Agra Pre-emption Act accrues on a transfer of a zamindary property being made by the Collector in favour of a decree-holder in accordance with the provisions of Section 5, United Provinces Regulation of Sales Act, 26 of 1934. The last mentioned Act was passed with the object of regulating 'the sale of agricultural land in execution of Civil Court decrees against agriculturists,' and by Clause (a) of Section 4 of that Act a decree-holder was given the option to 'take' the agricultural land or a portion of the agricultural land of the judgment-debtor in full satisfaction of the decree at a valuation fixed by the Collector in accordance with the provisions of Section 3 of the Act. In case a decree-holder decided to exercise this option the Collector was authorized by Section 5 to transfer the land to him in full satisfaction of the decree.

2. In the present case it is admitted that the respondent decree-holders exercised the option given to them by Clause (a) of Section 4 and the Collector transferred the land to them. The plaintiff-appellant then brought the suit for pre-emption that has given rise to the present appeal. The decree-holder contested the suit inter alia on the ground that the transfer to them was virtually a sale in execution of a decree and that a right of pre-emption did not accrue to the plaintiff. This contention of the decree-holder was overruled by the trial Court and the plaintiff's suit was decreed. But on appeal the learned District Judge held that no right of pre-emption accrued on the transfer by the Collector and accordingly dismissed the plaintiff's suit. In my judgment the decision of the learned District Judge is perfectly correct. Section 6, Agra Preemption Act, provides that nothing in that Act

shall affect the provisions of Rule 88, Order 21, Civil P.C. 1908, or Section 182, United Provinces Land Revenue Act 1901, or Section 24, Bundelkhand Encumbered Estates Act 1903, nor except as provided by those Sections, shall any right of pre-emption arise in respect of (a) any sale in execution of the decree of a Civil or Revenue Court, or (b) any sale in default of payment of land revenue or of any sum legally recoverable as an arrear of land revenue, or (c) any sale under the provisions of the Bundelkhand Encumbered Estates Act 1903.

3. Sections 7 to 10 of the Act make provision with respect to cases where no right of pre-emption accrues. Then by Section 11, which is made subject to the provisions of Section 6 to 10, the Legislature has provided that a right of pre-emption shall accrue whenever a cosharer or petty proprietor sells any proprietary interest in land forming part of any mahal or village in which a right of pre-emption exists, or where any such interest is foreclosed. It would appear from the provisions in the Act noted above that a right of pre-emption does not accrue in the case of a sale in execution of the decree of a Civil or Revenue Court and that ii; is only in the case of a voluntary Halo by a cosharer or petty proprietor of any proprietary interest in land that a right of pre-emption is given by the Act. I am not concerned in the present case with the right of pre-emption accruing on the foreclosure of a mortgage.

4. The answer to the question formulated at the inception of this judgment must therefore depend on the determination of the question whether the transfer by the Collector in favour of the respondents amounted to a sale in execution of a decree or was a voluntary sale of the nature contemplated by Section 11 of the Act. The fact that the share sought to be pre-empted was transferred by the Collector in satisfaction of the decree held by the defendants admits of no doubt. The sale was to liquidate the decree and the only question that remains is whether the sale was in 'execution of the decree.' The decree in question was passed by a Civil Court and that Court had transferred the decree for execution to the Collector and it was during the course of the execution proceedings that the Collector did transfer the land in dispute to the defendants decree-holders. The option to purchase the land rested with the decree-holders and the judgment-debtor had no voice in the matter. Once the decree-holders decided to exercise the option given to them by Section 4(a) it was incumbent on the Collector to transfer the land to them irrespective of the consent of the judgment-debtor to the transfer. The sale to the respondents decree-holders was therefore not a voluntary sale by the judgment-debtor, but was a sale in the course of execution proceedings. No right of preemption therefore accrued to the plaintiff. The appeal is dismissed with costs. Leave to appeal under the Letters Patent is granted.


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