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L. Laiq Ram Vs. Har Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All253; 147Ind.Cas.1201
AppellantL. Laiq Ram
RespondentHar Prasad and ors.
Excerpt:
- - ..6. in that case also, like the case before us, there was a mortgage decree which had been passed before the date of the notification. the learned counsel for the respondent is perfectly right in contending that no statute can be construed to have retrospective effect unless its language makes it clear that the intention was that it should have retrospective effect. 4 and 5. we are satisfied that the words;.....was made before the date of the notification. now, if the order for sale had been made before the date of notification then certainly the notification could not have affected that order of sale according to the view taken in hafizunnissa v. mahadeo prasad (1881) 4 all. 116. now, what is the date on which the court ordered the property to be sold?. in our opinion, it is the date on which the court executing the decree directed that the property should be sold. the contention raised by the learned counsel for the respondent is that the date on which the sale was ordered is the date on which a preliminary decree in the mortgage suit was passed. we are unable to accept this contention. on this point the ruling reported in hafizunnissa v. mahadeo prasad (1881) 4 all. 116 is against his.....
Judgment:

Rachpal Singh, J.

1. This is a judgment-debtor's appeal against an order passed by the learned Subordinate Judge, rejecting his prayer that a decree which is being executed against him should be transferred for execution to the Collector. The respondents-decree holders obtained a mortgage decree against the judgment-debtors on 15th August 1931 which was made final on 12th March 1932. On 17th June 1932 the decree-holders applied for execution and asked for the sale of the mortgaged properties. The judgment-debtor made an application, asking that as the sale of agricultural land was asked, the decree should be transferred to the Collector for execution. This contention was not accepted by the learned Subordinate Judge who held that as the land sought to be sold was not under the cultivation of the judgment-debtor it was not therefore agricultural land and so the decree could not be sent to the Collector for execution. The present appeal has been preferred by the judgment-debtor against the order disallowing his objection.

2. We have heard the learned Counsel on both sides and are of opinion that the objections of the judgment-debtors must prevail. It is true that at the time when the learned Subordinate Judge gave his decision the lafeeat notification on this point had nofc been issued and he therefore hold that the land was not agricultural and therefore the decree could not be sent to the Collector. But now a notification has been issued which is published in the U.P. Government Gazette of 3rd June 1933, No. 968.1 A-93, according to which any interest in land or fractional share will also come within the definition of agricultural land. So it must be held that the property Bought to be sold is agricultural land. The learned Counsel for the respondents has contended that the notification No. 576-IA-93, published in the U. P. Government Gazette of 26th, March 1932, would not cover this case . This notification runs as follows:

In supersession of notification No. 1887/1-288; dated 7th October 1911, and in exercise of the powers conferred by Section 68, Civil P.C., 1903, the-Governor-in-Council is pleased to declare that, with effect from 1st April 1932, 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 suoh land to be sold, shall be transferred to the Collector.

3. This has to be read with another notification dated 14th August 1926 which runs as follows:

In supersession of notification No. 671, dated. 30th August 1880, and in exercise of the powers conferred by Sections 63 and 70, Civil P.C. 1908 the Lieutenant Governor, with the previous sanction of the Governor-General-in-Gouncil, is. pleased to declare that, with effect from 1st January 1912, the execution of decrees in cases in which a civil Court has ordered any ancestral 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.

4. The important words in these notifications are, 'the execution of decrees in case s in which a civil Court has ordered.' The learned Counsel for the respondents has contended that in this case it was a. mortgage decree which directed the sale and that they got under that decree a. right of which they cannot be divested by a subsequent notification. The right-which they got under the decree was for sale of the mortgaged property and nothing more. No one disputes that right. The decree-holders have a right to ask that the property mentioned in the mortgage decree be sold. The question for consideration however is as to the manner in which that sale should take place,. In our opinion the words

the execution of decrees in cases ia which a civil Court his ordered any agricultural land to be sold etc.,

will cover the cases in which the Sale is-asked in pursuance of decrees passed nob only after the notification but also the mortgage decrees in which the sale had been directed. The notification issued by the Government means that whenever execution of any decree is sought in which a civil Court has ordered any land to be-sold, then the only method in which the decree can be executed is that ib; should be transferred for execution toi the Collector, regardless of the fact as to whether the order for sale was passed before the date of the notification or afterwards. The learned Counsel for the respondents relied on a ruling of this Court reported in Hafizunnissa v. Maha-deo Prasad (1881) 4 All. 116. The ruling has been read to us and in our opinion it is not applicable to the case before us as will be seen from the following remarks made by one of the learned Judges which are to be found at p. 120:

The notification would therefore be properly applied to all cases of execution of decrees by such Courts wherein the order for sale comes into existence on or after 1st October 1880. But when orders for sale had been passed prior to that date, it seems to me that rules and procedure which are to be applied pari passu with and in immediate sequence to such orders for sale, but which had not come into existence, or rather were not operative, till a date subsequent to tha date of the order for sale, could not rightly be applied retrospectively to such orders.

5. The fallacy underlying the arguments of the learned Counsel for the respondents is that he assumes that in the case before us the 'order for sale' was made before the date of the notification. Now, if the order for sale had been made before the date of notification then certainly the notification could not have affected that order of sale according to the view taken in Hafizunnissa v. Mahadeo Prasad (1881) 4 All. 116. Now, what is the date on which the Court ordered the property to be sold?. In our opinion, it is the date on which the Court executing the decree directed that the property should be sold. The contention raised by the learned Counsel for the respondent is that the date on which the sale was ordered is the date on which a preliminary decree in the mortgage suit was passed. We are unable to accept this contention. On this point the ruling reported in Hafizunnissa v. Mahadeo Prasad (1881) 4 All. 116 is against his contention. The following observations of Stuart, C.J., at pp. 117 and 118, make this clear:

As I understand the notification No. 871 of 1880, and dated 13th August 1880, the date of the decroa itself neod not be considered ; it is the date of the order for sale which is material for determining the question whether the notification does or does not apply to the particular case ; and if such order for sale has been made before IHI, October 1880, then the notification does not apply....

6. In that case also, like the case before us, there was a mortgage decree which had been passed before the date of the notification. But the application for execution was made later on and before the date on which the executing Court ordered that the property be sold the notification had been issued. The Full Bench held that the date material was the one not on which the decree for sale was passed in the suit but the date on which the executing Court ordered the property to be sold. The learned Counsel for the respondent is perfectly right in contending that no statute can be construed to have retrospective effect unless its language makes it clear that the intention was that it should have retrospective effect. But this principle cannot be applied to enactments dealing with procedure which are always retrospective to this extent that | provisions will apply to procceedings} already commenced at the time of their enactment, the reason being that no one can have vested right in forms of procedure. The subject is discussed in Chitale's Civil Procedure Code, Vol. 1, pp. 4 and 5. We are satisfied that the words; 'in case in which civil Court has ordered 'in the notification No. 576-1 A-93 of 26th March 1932 applies to all cases where a Court executing a decree orders agricultural land to be sold. All that the Court to which an application for execution of a decree has been made has to see is whether it is a case in which a decree-holder asks for the sale of the agricultural property, and if that is the ease, the decree has to be transferred to the Collector for execution as soon as the Court orders that the property should be sold. As in the ease before us the property sought to be sold is agricultural the decree should have been transferred to the Collector.

7. For the reasons given above, we allow this appeal, set aside the order passed by the Court below and direct that the decree be transferred by tha Court balow to the Collector for execution. The parties will bear their own costs in both the Courts.


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