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

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All57; 28Ind.Cas.278
AppellantRang Lal Kuar and ors.
RespondentKishori Lal and ors.
Cases ReferredHarbans Rai v. Sriniwas Rao Kalin
Excerpt:
agra tenancy act (ii of 1901), section 21(2) - mortgage of occupancy holding before before passing of act--decree posesseion--execution. - - the judgment-debtors come here in second appeal and it is urged that whatever may have been decreed, still clause 2 of section 21 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 judgment-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 he delivered to the decree-holders in execution of the decree. the judgment-debtors come here in second appeal and it is urged that whatever may have been decreed, still clause 2 of section 21 says clearly that the interest of an occupancy tenant is not transferable in execution of a decree of the civil court.....
Judgment:

1. This is a second appeal by the judgment-debtors. An occupancy holding was usufructuarily mortgaged on January 25th, 1900, to one Dwarka Prasad whose interest has now devolved upon the present decree holders, Kishori Lal, etc. Possession was not given to the mortgagee, who brought a suit in which he sought in the alternative either to recover his money or got possession of the property. On June 6th, 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 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 judgment-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 he delivered to the decree-holders in execution of the decree. The judgment-debtors come here in second appeal and it is urged that whatever may have been decreed, still Clause 2 of Section 21 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 3 A.L.J. 40 : A.W.N. (1906) 28 and in Harbans Rai v. Sriniwas Rao Kalin 12 Ind. Cas. 631 : 8 A.L.J. 1 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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