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Kishori Lal and ors. Vs. Rang Lal Kunwar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All278
AppellantKishori Lal and ors.
RespondentRang Lal Kunwar and ors.
Excerpt:
.....board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the judgement-debtors come here in second appeal, and it is urged that, whatever may have been decreed, still clause (2) of section 20 says clearly that the interest of an occupancy tenant is not transferable in execution of a decree of the civil court and therefore the civil court's decree cannot be executed. under the rulings of this court the mortgage, which was made before the present tenancy act came into force, was a good one and the mortgagee was therefore entitled to enforce his decree......were entitled to possession and accordingly it gave a decree for possession. having obtained the decree execution was sought, and again the judgement-debtors came forward and pleaded that possession could not be given to the decree-holders in execution of the decree by reason of section 20 of the tenancy act. the subordinate judge allowed this plea and dismissed the application. the lower appellate court has set aside the decision of the first court and has ordered possession to be delivered to the decree-holders in execution of the decree. the judgement-debtors come here in second appeal, and it is urged that, whatever may have been decreed, still clause (2) of section 20 says clearly that the interest of an occupancy tenant is not transferable in execution of a decree of the civil.....
Judgment:

Tudball and Rafiq, JJ.

1. This is a second appeal by the judgement-debtors. An occupancy holding was usufructuarily mortgaged on the 25th of January, 1900,to one Dwarka Prasad, whose interest has now devolved upon the present decree-holders, Kishori Lal, &c.; Possession was not given to the mortgagee, who brought a suit in which he sought in the alternative either to recover his money or get possession of the property. On the 6th of June, 1912, a decree for possession was awarded to the mortgagee, as such. An. objection was taken in the course of the suit by the defendants that the transfer was illegal and that the plaintiffs were not entitled to possession. The court decided in favour of the mortgagee, holding that the mortgage was valid and that the plaintiffs as such were entitled to possession and accordingly it gave a decree for possession. Having obtained the decree execution was sought, and again the judgement-debtors came forward and pleaded that possession could not be given to the decree-holders in execution of the decree by reason of Section 20 of the Tenancy Act. The Subordinate Judge allowed this plea and dismissed the application. The lower appellate court has set aside the decision of the first court and has ordered possession to be delivered to the decree-holders in execution of the decree. The judgement-debtors come here in second appeal, and it is urged that, whatever may have been decreed, still Clause (2) of Section 20 says clearly that the interest of an occupancy tenant is not transferable in execution of a decree of the Civil Court and therefore the Civil Court's decree cannot be executed. In view of the decision of this Court in the case of Babu Lal v. Ram Kali (1906) 3 A.L.J. 40 and in Harbans Rao v. Sri Niwas Rao Kalin (1911) 8 A.L.J. 1301, the plea has absolutely no force at all. It has been decided as between the parties finally in the course of this suit that the plaintiffs are entitled to possession. The decree has been obtained. Under the rulings of this Court the mortgage, which was made before the present Tenancy Act came into force, was a good one and the mortgagee was therefore entitled to enforce his decree. Over and above this the executing court cannot go behind the decree. That decree states that the plaintiff shall be put into possession and the court is bound to execute it. There is no force in the appeal, we dismiss it with costs.


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