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Baijnath Vs. Lakshmi NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 2254 of 1967
Judge
Reported inAIR1971All398
ActsCode of Civil Procedure (CPC) , 1908 - Sections 52(1); Tenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - Sections 153
AppellantBaijnath
RespondentLakshmi NaraIn and ors.
Appellant AdvocateC.B. Misra, Adv.
Respondent AdvocateH.P. Agarwal, Adv.
DispositionAppeal dismissed
Excerpt:
civil - tenancy - sub-section(1) of section 52 of code of civil procedure, 1908 - decree passed against a party as legal representative for payment of money - executed by attachment and sale - where deceased debtor is sirdar of holding - property not liable to attachment and sale - interest of sirdar not transferable. - .....judgment-debtors. thereafter the appellant put the decree in execution by attachment and sale of a holding. the holding was held by ram charan as a sirdar under the u. p. zamindari abolition and land reforms act (hereinbelow called the act). after his death it was inherited by the judgment-debtors. they later acquired the rights of a bhumidhar in the holding by depositing the requisite amount of money for acquiring the said rights. presumably the amount was deposited by them from their own pocket, for there is no finding that the amount which they deposited was inherited by them from ram charan. 3. the judgment-debtors objected to the attachment and sale of the holding of which they are now bhumidhars. the execution court overruled their objection. in appeal, the civil judge upheld the.....
Judgment:

Dwivedi, J.

1. This appeal comes to us on a reference being made by a learned single Judge. It is an Execution Appeal.

2. The appellant, Baijnath, obtained a decree against the property of the deceased Ram Charan in the hands of the respondents, the judgment-debtors. Thereafter the appellant put the decree in execution by attachment and sale of a holding. The holding was held by Ram Charan as a sirdar under the U. P. Zamindari Abolition and Land Reforms Act (hereinbelow called the Act). After his death it was inherited by the judgment-debtors. They later acquired the rights of a bhumidhar in the holding by depositing the requisite amount of money for acquiring the said rights. Presumably the amount was deposited by them from their own pocket, for there is no finding that the amount which they deposited was inherited by them from Ram Charan.

3. The judgment-debtors objected to the attachment and sale of the holding of which they are now bhumidhars. The execution court overruled their objection. In appeal, the Civil Judge upheld the objection. The Civil Judge held that the holding was not the property of the deceased in the hands of the judgment-debtors.

4. Section 52(1) Code of Civil Procedure provides that where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment or money out of the property of the deceased, it may be executed by the attachment and sale of any such property. The deceased debtor was the sirdar of the holding. It was not a property liable to attachment and sale. Section 153 of the Act provides that except as expressly permitted by the Act the interest of a sirdar shall not be transferable. It further provides that in certain circumstances sirdar may make a simple mortgage of his holding or may gift it to an educational institution. But for these two exceptions a Sirdar cannot transfer his holding. As the interest of the deceased-debtor was not transferable, it is not possible to say that the bhumidhari interest which the judgment-debtors have acquired by depositing money from their own pocket is the property of the deceased in their hands. Bhumidhari right is a new right (Rana Sheo Ambar Singh v. Allahabad Bank Ltd., 1961 All LJ 716 = (AIR 1961 SC 1790).)

5. Accordingly we are of opinion that the Civil Judge rightly held that the decree-holder could not proceed against the holding of the judgment-debtors over which they had acquired bhumidhari rights. The appeal is dismissed with costs.


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