1. This case has been very carefully argued by Mr. Radha Krishna, Advocate, for the opposite party. The facts are that on 5th April 1924, the judgment-debtor had mortgaged a grove No. 616, having forty mango trees planted on it, to the plaintiff. The description of the property mortgaged is as follows : 'Ek qita bagh amba jisme chalis darakhtan amba hain maucua arazi number 616.' (and then the name of the village and other details are given). The mortgagee filed a suit for sale in the year 1935 and obtained a decree. In the decree the description of the property as given in the mortgage deed as reproduced. The decretal amount was not paid by the judgment-debtor and the decree-holder applied for execution of the decree by sale of the grove. The judgment-debtor filed an objection on 28th May 1942, that he was an agriculturist and that according to the provisions of Section 22, U.P. Debt Redemption Act the decree could not be executed by sale of the trees. Section 22, U.P. Debt Redemption Act of 1940 is as follows:
No decree to which this Act applies shall be executed by the transfer of trees belonging to an agriculturist unless the land on which such trees stand is also transferred:
Provided that nothing in this section shall be deemed to prohibit the execution of a decree by the sale of the interest of a grove-holder.
2. The decree-holder's reply to this objection was that it were not the trees that were being sold but it was the interest of the grove-holder that was for sale. The executing Court by an order dated 1st August 1942, held:
The sale of grove and grove-holder's interest is not prohibited by the Debt Redemption Act or the Agriculturists' Relief Act, so sale can be effected.
3. The sale was effected and the decree, holder himself purchased the grove. The judgment-debtor then filed an objection that the civil Court had no jurisdiction to sell the interest of a grove-holder and that the decree should have been transferred to the Collector under Section 68, Civil P.C., for sale of the property. This objection was overruled by the executing Court and the Court then held that what it had sold was not the grove, holder's interest but certain trees in a grove. The objection was finally dismissed by the executing Court and the decision was upheld by the learned Civil Judge in appeal by an order dated 4th November 1943.
4. When the matter came up before me at an earlier date I wanted a clear finding from the Court below as to the nature of the property that was sold, as at that stage counsel were not able to give me proper information on the point. The learned Civil Judge has now held that what was sold was a grove of mangoes but he has gone on to express his opinion that a grove-holder's interest can be sold by the civil Court as a grove-holder's interest is something quite distinct from the grove land and he has on that ground distinguished the decision of this Court in Nandu Mal v. Panna Lal : AIR1936All436 . I have looked into the sale certificate and I find that what was sold at auction was 'qita bagh amba numberi 616 raqba 1 acre decimal 3.' Taking that description along with the order passed by the executing Court on 1st August 1912, there can be no doubt that what was sold was the interest of a grove-holder. Section 68, Civil P.C., provides as follows:
The Provincial Government may declare by notification in the Official Gazette, that in any local area the execution of decrees in cases in which a Court has ordered any immoveable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in, immoveable property, shall be transferred to the Collector.
5. The relevant portion of the notification dated 8th October 1936, reads as follows:.the execution of decrees, in cases in which a civil Court has ordered any agricultural land situated in the United Provinces of Agra and Oudh or any interest in such land, to be sold shall be transferred to the Collector....
6. The term 'agricultural land' in these rules means:
(a) Land as defined in the Agra Tenancy Act, III of 1926...but does not include standing timber, standing crops or any other ungathered produce of land when sought to be sold apart from the land itself....
7. It would be clear from the above notification that 'agricultural land' or 'any interest in agricultural land' can be sold only by the Collector and not by the civil Court. 'Agricultural land' as defined in the Agra Tenancy Act (3 [III] of 1926) means 'land which is let or held for agricultural purposes, or as grove land or for pasturage.' 'Grove land' has been defined in the same Act as meaning.
Any specific piece of land in a mahal having trees planted thereon in such numbers that when full grown they will preclude the land or any considerable portion thereof being used primarily for any other purpose, and the trees on such land constitute a grove.
8. A 'grove-holder' is defined under Section 196 of the same Act as follows:
A grove-holder is a person to whom land has been let or granted by a landlord or a permanent tenure-holder for the purpose of planting a grove, or who has in accordance with local custom entitling him to do so or with the written permission of the landlord or the permanent tenure holder, planted a grove on land held by him as tenant (not being a permanent tenure-holder, a fixed rate tenant or a sub-tenant) or as rent free grantee not being a grantee to whom the provisions of Section 185 or Section 186 apply, of such landlord or permanent tenure-holder, as the case may be:
Provided that where the permission was granted prior to the commencement of this Act, the permission need not have been in writing and may have been either express or implied.
9. What I have, therefore, to see in this case is whether only the trees that were standing on plot No. 616 were sold or the auction purchaser had the right to look after the grove as such, that is, to remove old trees, plant new ones and so long as the trees stood on the plot to exercise all the rights of a grove-holder. To my mind, there can be no doubt that the intention was not to sell the trees as that would have contravened the provisions of Section 22, U.P. Debt Redemption Act. What was sold was the grove-holder's interest and the grove-holder has certainly some interest in the 'grove land' which is included in the term 'agricultural land.' The only exception in the rule relates to standing timber, standing crops or other ungathered produce of land. The sale of a mango grove cannot be said to be the sale of standing timber. 'Standing timber' means trees which are intended to be cut and removed and used as timber. I, therefore, do not see how the civil Court could, in view of the notification of the year 1930, sell a grove-holder's interest. There may have been some ambiguity under the old notification of the year 1932, but, to my mind, the notification of the year 1936 was intended to clarify the position.
10. Learned Counsel for the parties have relied on a number of cases. None of those cases make any reference to the notification of the year 1936 and most of them are not even relevant. I need not, therefore, discuss them. For the reasons given above, I allow this revision, set aside the orders of the Court below and hold that the civil Court has no right to sell the grove. The decree shall be transferred to the Collector for execution. As the objection to the jurisdiction of the civil Court was not taken before the sale when the judgment-debtor filed his objection on 28th May 1942, which has resulted in waste of so much time of the Courts below, I think it is a fit case where the parties shall bear their own costs of these proceedings.