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Ganga Prasad and anr. Vs. Ganga Bakhsh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All415
AppellantGanga Prasad and anr.
RespondentGanga Bakhsh Singh and ors.
Excerpt:
civil procedure code, sections 320, 325a - ancestral property--execution of decree--property taken under management of the collector--disabilities of proprietor pending term of management. - - if the lease had determined, for example, by reason of non-payment of rent, it would have been the duty of the collector under the code to make arrangements for the management of the property, either by himself or by granting a lease, we are further disposed to think that, irrespective of the lease of 1884, the property was, under the provisions of the code of civil procedure, under the management of the collector so long as any of the debts in respect of which execution had issued, remained unsatisfied with effect from the date when the decrees were transferred to the collector for execution......bindhachal shukul, on the 10th of may 1884, for a term of 17 years, and that so soon as that lease was executed the powers of the collector ceased and therefore it was in the competency of the mortgagors to execute the mortgage of 1885. we find on turning to the lease of 1884, that it was not a lease by the collector but a lease by the judgment-debtor, nath bakhsh singh, in his own name with the consent, of the collector. section 325a provides that so long as the collector can exercise or perform in respect of the judgment debtor's immovable property any of the powers or duties conferred upon him by sections 322--325 (inclusive), the judgment-debtor or his representatives in interest shall be incompetent to mortgage, charge, lease, or alienate such property except with the written.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. The appeal arises out of a suit for sale on two mortgages, dated respectively the 31st of May, 1885, and the 10th of January 1890, executed by Nath Bakhsh Singh in favour of the plaintiffs Ganga Prasad and Thakur Prasad, One of the defendants, Bindhachal Shukul, pleaded that, before the execution of the mortgages, decrees had been put into execution against the mortgagor and the property placed under the management of the Collector, and that consequently Section 325A of the Code of Civil Procedure was a bar to the execution by the mortgagors of the two mortgages sued on, The Court below held that the provisions of this section barred the claim in respect of the mortgage of 1885, but held that the mortgage of 1890 was valid, inasmuch as that mortgage was executed after the property had ceased to be under the management of the Collector. This appeal has been preferred against this decree so far as it dismissed the claim under the mortgage of 1885, The case put forward on behalf of the appellants is that a lease of the property in dispute was executed in favour of the defendant Bindhachal Shukul, on the 10th of May 1884, for a term of 17 years, and that so soon as that lease was executed the powers of the Collector ceased and therefore it was in the competency of the mortgagors to execute the mortgage of 1885. We find on turning to the lease of 1884, that it was not a lease by the Collector but a lease by the judgment-debtor, Nath Bakhsh Singh, in his own name with the consent, of the Collector. Section 325A provides that so long as the Collector can exercise or perform in respect of the judgment debtor's immovable property any of the powers or duties conferred upon him by Sections 322--325 (inclusive), the judgment-debtor or his representatives in interest shall be incompetent to mortgage, charge, lease, or alienate such property except with the written permission of the Collector. It appears to us that the view taken by the Court below is correct. The property was under the management of the Collector, notwithstanding the fact that the lease of the 10th of May 1884 was made with his consent. If the lease had determined, for example, by reason of non-payment of rent, it would have been the duty of the Collector under the Code to make arrangements for the management of the property, either by himself or by granting a lease, We are further disposed to think that, irrespective of the lease of 1884, the property was, under the provisions of the Code of Civil Procedure, under the management of the Collector so long as any of the debts in respect of which execution had issued, remained unsatisfied with effect from the date when the decrees were transferred to the Collector for execution. We, therefore, upholding the view of the Court below, dismiss this appeal with costs.


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