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Hema Nana Sirvi Vs. Gajanand Ramchandra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 22 of 1957
Judge
Reported inAIR1960MP1
ActsTenancy Law; Madhya Bharat Land Revenue and Tenancy Act, 1950 - Sections 70 and 71(1); Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 32(5)
AppellantHema Nana Sirvi
RespondentGajanand Ramchandra and anr.
Appellant AdvocateK.A. Chitale and ;R.K. Vijayawargi, Advs.
Respondent AdvocateV.M. Rege, Adv.
DispositionAppeal dismissed
Cases ReferredMahomed Wazir v. Jahangiri Mal
Excerpt:
.....:(1) subject to the provisions of sub-section (2), a pakka tenant's rights in any part of his holding shall be liable to sale under the order of the suba of the district in the following cases only (a) in execution of a decree for money passed by a competent civil court which has not been or cannot otherwise be satisfied; it was conceded that the executing court could direct the judgment-debtor to obtain the requisite sanction of the suba for the sate of the property, or if he failed to take steps for obtaining the sanction, appoint some person for the purpose at the expense of the judgment-debtor. the sale is clearly not in execution of a decree. this view is not in accord with, the observations of the privy council in air 1930 pc 287 that the terms of order 21, rule 32 (5), are..........for the respondents, urged that but for a decree for specific performance for the sale of the holding sanction would have been necessary under section 70 of the act. according to the learned counsel for the respondents the sale of a holding in pursuance to a decree for specific performance was not a voluntary sale within the meaning of section 70 and that it, was also not a compulsory sale contemplated by section 71 (1) and that, therefore, no sanction was at all necessary for the sale of the holding to the respondents.5. the question then that survives for consideration is whether the sale of a property in pursuance of a decree for specific performance is a voluntary sale for purposes of section 70 or is a compulsory sale. i have no doubt that the sale of the property pursuant to a.....
Judgment:
ORDER

P.V. Dixit, J.

1. This appeal arises out of execution proceedings of a decree obtained by Ramchandra on 24-3-1949 from the Court of Sub-Judge, Bagod, against Hema for specific performance of a contract of sale of certain agricultural holding. After the death of Ramchandra, the respondents Gajanand and Gangadhar, as his legal representatives, initiated proceedings for the execution of the decree. In those proceedings, Hema raised the objection that the decree could not be executed as the holding in question could not be sold without the previous sanction of the Suba under Section 70 of the Madhya Bharat Land Revenue and Tenancy Act 1950 and this sanction had not been obtained.

This objection found favour with the Civil Judge, second class, Burwaha, executing the decree. He held that though at the time of the passing of the decree no sanction of any authority for the sale of the land was required under the Dewas State (Senior) Land Revenue Act, after the coming into force of the Madhya Bharat Land Revenue and Tenancy Act 1950 the holding could not be sold without the previous sanction of the Suba and that no such previous sanction had been obtained. He accordingly held the decree to be inexecutable and dismissed the application for execution of the decree.

The decree-holders then appealed to the Court of the District Judge, Mandleshwar. The learned Additional District Judge took the view that the decree was not void ab initio; that, therefore, it was the duty of the executing Court to enforce it; and that the executing Court was not concerned with the question whether the sale required to be validated under Section 70 (2) of the Madhya Bharat Land Revenue and Tenancy ACT 1950. He, therefore, held the decree to be executable and remitted, the case to the executing Court for disposal. The judgment-debtor has now preferred this appeal from the decision of the Additional District Judge, Mandleshwar.

2. It is common ground that under the Dewas State (Senior) Land Revenue and Tenancy Act, which was in force at the time of the passing of the decree, no sanction of any kind was necessary for the sale of agricultural lands covered by the decree. The only question that arises for determination is whether under the Madhya Bharat Land Revenue and Tenancy Act 1950 sanction of the Suba for the sale of the land is necessary and whether it not having been obtained the decree is altogether inexecutable. The material provisions of the Madhya Bharat Land Revenue and Tenancy Act 1950 are contained in Sections 70 and 71.

Under Section 70, a Pakka tenant's holding can be sold only with the previous sanction of the Suba to a registered co-operative farming society of the same village in which the land is situated or to a bona fide agriculturist, subject to the conditions mentioned in Sub-sections (3) to (8) of Section 70. Sub-section (2) of Section 70 provides for the validation of a sale effected without the previous sanction of the Suba subject to the conditions specified in Sub-section (3) to (8). Section 71 so far as is relevant here, runs as follows :

'(1) Subject to the provisions of Sub-section (2), a Pakka tenant's rights in any part of his holding shall be liable to sale under the order of the Suba of the district in the following cases only

(a) in execution of a decree for money passed by a competent Civil Court which has not been or cannot otherwise be satisfied; or

(b) in execution of an order for the sale of a Pakka tenant's rights in the whole or any part of! his holding passed by a competent Court under law relating to insolvency for the time being in force.'

3. It was argued on behalf of the appellant that though under the Dewas State (Senior) Land Revenue Act, which was an force at the time of the passing of the decree, a Pakka tenant's holding could be sold without obtaining any sanction, the rights in the holding could not now be transferred without the previous sanction of the Suba under Section 70 of the Madhya Bharat Land Revenue and Tenancy Act. Learned counsel for the appellant said that the sale of the holding in pursuance of a decree for specific performance of a contract of sale would be a voluntary sale and not a sale in execution of a decree or a sale by the decree itself.

In view of the decision of the Privy Council in Motilal v. Nanhelal, AIR 1930 PC 287, learned counsel did not contend that the decree was altogether inexecutable. It was conceded that the executing Court could direct the judgment-debtor to obtain the requisite sanction of the Suba for the sate of the property, or if he failed to take steps for obtaining the sanction, appoint some person for the purpose at the expense of the judgment-debtor.

4. Mr. Rege, learned counsel for the respondents, urged that but for a decree for specific performance for the sale of the holding sanction would have been necessary under Section 70 of the Act. According to the learned counsel for the respondents the sale of a holding in pursuance to a decree for specific performance was not a voluntary sale within the meaning of Section 70 and that it, was also not a compulsory sale contemplated by Section 71 (1) and that, therefore, no sanction was at all necessary for the sale of the holding to the respondents.

5. The question then that survives for consideration is whether the sale of a property in pursuance of a decree for specific performance is a voluntary sale for purposes of Section 70 or is a compulsory sale. I have no doubt that the sale of the property pursuant to a decree for specific performance of a contract of sale is a voluntary sale. The sale is clearly not in execution of a decree. It is not even a sale by the decree itself. A decree for specific performance only declares the right of the decree-holder to have the transfer of a property covered by the decree executed in his favour. But a sale consequent to this declaration is fundamentally a voluntary sale. The voluntary nature of the sale becomes obvious from the fact that

'the specific performance of a contract is its actual execution according to its stipulations and terms.....such actual execution is enforced under the equitable jurisdiction .... by directing the party in default to do the very thing which lie contracted to do ....' (see Fry on Specific Performance).

The element of voluntariness is present because what is enforced by a decree for specific performance is an agreement between two persons with a lawful consideration and in regard to the terms of which there has been a clear mutual understanding and a positive assent on both sides. This voluntary character of sale pursuant to a contract is not altered by the fact that a decree for the actual performance of the contract has been passed against the party bound to fulfil it. The sale of a property pursuant to a decree for specific performance is not a compulsory sale under Section 71 (1). This is obvious from the plain provisions of that sub-section.

In my opinion, the sale of holding in accordance with a decree for specific performance is a voluntary sale and requires sanction of the Suba under Section 70 of the Act. It is easy to see that if a sale of a holding pursuant to a decree for specific performance of a contract for its sale is not regarded as a voluntary sale and does not require any sanction under Section 70 and is not subject to the restrictions imposed by Section 71, then the provisions of Section 70 would be rendered altogether nugatory. On that view, the provisions of Section 70 would be easily evaded by having a voluntary sale completed not directly but after obtaining, without any contest, a decree for specific performance.

6. I must notice two decisions which were cited at the bar. Learned counsel for the appellant referred me to Hakim Enayat Ullah v. Khalil Ullah Khan, AIR 1938 All 432, where it was held that a decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in his favour and the sale-deed executed by a Court in pursuance of a decree for specific performance is a transfer by the Court on behalf of the judgment-debtor, and if the judgment-debtor is precluded from transferring the property by some statutory provision, the Court cannot, in violation of that provision, execute a sale deed of the property.

In that case also, the Collector's previous sanction was necessary to the sale. The learned Judges of the Allahabad High Court were inclined to take the view that it was for the decree-holder to apply to the Collector for sanction and the Court itself could not move the Collector for necessary sanction. This view is not in accord with, the observations of the Privy Council in AIR 1930 PC 287 that the terms of Order 21, Rule 32 (5), are sufficiently wide to enable the Court executing the decree to appoint some person at the expense of the judgment-debtor to obtain the requisite sanction of the competent authority, if the judgment-debtor failed to obtain it.

7. Mr. Rege, learned counsel for the respondents, relied on Mahomed Wazir v. Jahangiri Mal, AIR 1949 Lah 72, in support of his contention that a sale effected in consequence of a decree for specific performance is not a voluntary sale. The Lahore case does not seem to me to be in point. That was a case in which the question arose whether a sale effected in execution of a decree for specific performance was a sale for purposes of Punjab Pre-emption Act 1913, Section 3 (5) of that Act provided that for the purposes of that Act, a sale shall not include 'a sale in execution of a decree for money or of an order of a civil, criminal or revenue Court, or of a revenue officer.'

The learned Judges of the Lahore High Court treated a sale in pursuance of a decree for specific performance as an act of the Court, as statutory substitute for the person who is in default, and, therefore, held that the sale must be deemed to be a sale by order of the Court and could not be regarded as a voluntary sale for purposes of pre-emption. The Lahore case cannot be regarded as laying down general proposition that a sale effected in consequence of a decree for specific performance is a compulsory sale in essence and not a voluntary sale for any purpose.

8. For these reasons, I am of the opinion that the decree obtained by the respondents is executable and the respondents can claim to have the holding sold to them after obtaining the sanction of the Suba under Section 70 of the Act, Learned counsel for the respondents stated before me that after the decision of the Additional District Judge of Nimar, the sale was effected and a sale-deed was also executed. If that be so then the respondent-transferees must obtain the sanction of the Suba under Section 70 (2) of the Act.

9. In consequence, this appeal is dismissedwithout any order as to costs.


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