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Pirji Safdar Ali Vs. the Ideal Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H94
AppellantPirji Safdar Ali
RespondentThe Ideal Bank Ltd. and ors.
Cases ReferredMuhammad Ismail v. Shamhs
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....1. execution second appeals nos. 1654 of 1946 and 1553 of 1946 have been referred to a full bench in view of the difficulty and importance of certain questions of law that arise in them. the most important question which necessitated this reference wag whether the authority of the division bench judgments of this court in thakar das v. roshan din a.i.r. 1933 lah. 897, chhaju ram v. muzaffar ahmad a.i.r. 1936 lah. 845 and sahib dayal and anr. v. jamaluddin and ors. a.i.r. 1937 lah. 194 had not been impaired by the full bench judgment in punjab national bank ltd. ferozepore city v. ram karan ramji lal and ors. a.i.r. 1940 lah. 370 (f.b.) and whether those judgments can otherwise be held to lay down good law. the question involved in these judgments was whether in view of section 16, punjab.....
Judgment:

1. Execution Second Appeals Nos. 1654 of 1946 and 1553 of 1946 have been referred to a Full Bench in view of the difficulty and importance of certain questions of law that arise in them. The most important question which necessitated this reference wag whether the authority of the Division Bench judgments of this Court in Thakar Das v. Roshan Din A.I.R. 1933 Lah. 897, Chhaju Ram v. Muzaffar Ahmad A.I.R. 1936 Lah. 845 and Sahib Dayal and Anr. v. Jamaluddin and Ors. A.I.R. 1937 Lah. 194 had not been impaired by the Full Bench judgment in Punjab National Bank Ltd. Ferozepore City v. Ram Karan Ramji Lal and Ors. A.I.R. 1940 Lah. 370 (F.B.) and whether those judgments can otherwise be held to lay down good law. The question involved in these judgments was whether in view of Section 16, Punjab Alienation of Land Act, the executing Court had jurisdiction to refuse sale of the land belonging to a member of a notified agricultural tribe when the decree sought to be executed was a mortgage decree and contained a direction for the sale of agricultural land covered by the mortgage.

2. In order to properly appreciate the points involved in these appeals and to find a correct solution to the problems raised it is necessary to set out shortly the facts and the circumstances that have led to this reference. One Pirji Safdar Ali, a resident of Delhi, is a lessee of certain rights in agricultural land measuring 26 bighas 16 biswas kham in the area of Mauza Basalwa, Tahsil Balabgarh, District Gurgaon. He holds perpetual lease-hold rights in these plots of land which belong to different persons. The purpose of the lease is to grow hina plants and to derive benefit from the produce of these plants. In January 1934 an equitable mortgage of his leasehold rights was created by Pirji Safadar Ali in favour of the Ideal Bank, Ltd., Delhi. The object of this equitable mortgage was to secure an overdraft account between the debtor and the creditor.

3. On 21st August 1941 a suit was brought on the foot of this mortgage by the Bank for the recovery of Rs. 1,546-4-3 principal and interest. This suit was defended on a number of grounds by the debtor. It is, however, unnecessary to mention all those grounds as they are not necessary or relevant in the present enquiry. The only ground that concerns us here was that the mortgaged property fell within the definition of the phrase 'land' defined in the Punjab Alienation of Land Act, and, therefore, could not be sold in execution of the decree in view of the provisions of that Act. This plea was covered by issue 1 which ran thus:

Is defendant 1 a member of an agricultural tribe 1 Is the mortgage property 'land' within Act I [1] of 1900? Is it not liable to be sold in execution of Civil Court's decree?

The judgment on this issue was delivered in these terms:

The term 'Sardrakhti' was considered and interpreted in Muhammad Ismail v. Shams-ud-Din A.I.R. 1920 Lah. 310). There it was held that a sale of Sardrakhti rights of the tenant will mean the sale of the right owned by the lessee in the trees and not the actual trees themselves. Such a sale was held not to be a sale of land within the meaning of Section 3, Punjab Pre-emption Act, read with Section 2(3), Punjab Alienation of Land Act. In ordering the sale of the Sardrakhti rights of defendant 1 in execution of the decree, if passed, the Court will not be ordering the sale of 'land' as defined in the Alienation of Land Act but some rights in land which do not constitute 'land'.

Kajumal v. Saligram A.I.R. 1924 P.C. 1 was cited by the counsel for defendants 5 and 6. It was held therein that land let out for plantation of tea will be agricultural land let out for purposes of agriculture. This ruling is clearly distinguishable from the facts of the case. Here 'land' itself is not being sold.

Following Muhammad Ismail v. Shams-u-Din A.I.R. 1920 Lah. 310, I find this issue against defendants 4 to 8.

In order to discover the true import of this decision reference may be made to the decision of the Bench in Muhammad Ismail v. Shamus-ud-Din A.I.R. 1920 Lah. 310. In this case, the vendor was the tenant of certain land under a lease made in 1888 in which it was stated that the land was leased waste lagane sardrakhti, i. e, for the planting of a grove of trees or plantation. The lease was for seven years and after expiry of that period the lessor was to receive the of the produce of flowers, fruits, etc., of the land. Another condition was that if the lessor wanted to evict the lessee after the expiry of the seven years he would pay the latter the value of his sardrakhti. By a deed of sale made in 1914 the vendor sold his sardrakhti in the land i.e., the rights owned by him in the trees. The plaintiff sued for pre-emption in respect of the sale and the questions for decision were, whether the subject of the sale came within the definition of (1) 'agricultural land' in the Punjab Pre-emption Act, Section 3, read with the Punjab Alienation of Land Act, 1900, Section 2(3)(b) as being a share in the profits of an estate or holding, or (2) 'immovable property' under the Punjab Pre-emption Act, Section 3. It was held, that the temporary rights which the vendor had in the produce of the trees under the lease did not constitute him owner of 'a share in the profits of the holding' and that consequently the subject of the sale as not 'agricultural land' within the meaning of the above section. Scott-Smith, J. who delivered the judgment of the Court in this case observed as follows:

What has been sold is the lessee's rights in the trees and their produce. Now, the lessee's rights are only temporary ones, and though, as long as he is in possession as such lessee, he is entitled to keep the produce after deducting the landlord's share, I do not think it can be said that these temporary rights constitute him owner of a share in the profits of the holding. I think the definition is intended to apply only to the proprietor who owns a permanent share in the profits, and not to a mere tenant at will who is entitled to reap the produce as the fruits of his labours. I am, therefore, of opinion that what was sold was not agricultural land.

5. On the basis of this finding a preliminary mortgage decree was granted in the sum of Rs. 1,546/4/3 and costs and interest at 12&frac; per cent, per annum with six monthly rests to the plaintiff. A direction was also given that the property rights relating to land situate in village Basalwa only be sold and the sale shall be subject to the mortgage of defendants 5 and 6. The decree that was framed in the case did not specify the nature of the rights directed to be sold. It ran as follows:

It is hereby further ordered and decreed that in default of payment as afosesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgage property rights related to land situate in village Basalwa as described on reverse of the decree sheet.

6. The land described on the reverse was 26 bighas 16 biswas kham. The expression ''property rights relating to land' is a very vague expression and can bear a very wide interpretation. The use of this expression does not convey what was covered under the decision of issue No. 1 above cited. It bears the interpretation that certain rights in the land itself were directed to be sold by this decree though the scope of the judgment was that no rights in the land had to be sold but only the sardrakhti rights of the mortgagor.

7. This decree was made final on 30th of October 1942 and the troubles of the decree-holder started since that date. In spite of the lapse of about five years the decree-holder has not been able to realise any part of the decree by sale of the property which was directed to be sold by the final decree. For the troubles that arose the decree-holder himself is certainly responsible to a certain extent.

8. The first application for execution of the decree was presented to the executing Court on 11th of November 1943. In this application, the prayer clause runs thus:

It is prayed that the amount due to the deeree-holder be realised by auction of the perpetual leasehold right in the land mentioned above and also by sale of the other property movable and immovable of the judgment-debtor.

Though the decision in the case was that the decree-holder could only sell Sardrakhti rights of the mortgagor, yet the decree-holder wanted sale of the perpetual leasehold rights of the mortgagor in the land itself. It will be pertinent to point out that the decree-holder-escaped from the plea raised by the judgment-debtor under the Punjab Alienation of Land Act by taking up the position that what he had taken on mortgage was merely Sardrakhti rights of the mortgagor and that is what he intended to sell but once he was successful in defeating that plea he was unscrupulous in asking the executing Court to sell much more than was covered by the decision under issue No. 1. This grasping attitude of the creditor was the starting point of his troubles. On 28th March 1944 the judgment-debtor raised a number of objections to the execution being issued and these objections were supplemented by another petition made on 12th April 1944. The main objection raised was that the rights in the property for the sale of which prayer had been made were covered by the definition of 'land' as given in the Punjab Alienation of Land Act and therefore the executing Court had no jurisdiction to order sale of those rights in view of the mandatory provisions of Section 16 of that Act. As the judgment-debtor had become an insolvent an objection was raised that execution could not proceed nor could the suit have proceeded without the permission of the insolvency Court and the decree, therefore, was in executable having been passed by a Court without jurisdiction. The petition filed on 12th April 1944 raised the point that there was no decree against the judgment-debtor and that the Official Assignee, who had been impleaded in the ease, was only liable to the extent of the property in his possession and as the property in dispute was not in possession of the Official Assignee the decree-holder could not proceed against it. These objections gave rise to seven issues. Issue No. 2 was in these terms:

Is the property in dispute 'land' and therefore not saleable in (execution of?) the decree in spite of a direction to the contrary in the decree'?

Issue No. 3 ran thus: 'Is issue No. 2 barred by res judicata on account of the decision in the suit'?

9. The executing Court dismissed both these sets of objections by its order dated 20th December 1944. On the second issue it held as follows:

The property in dispute is the sardrakhti rights of a permanent tenant in the hina crops at Faridabad. The point was directly in dispute in the ruling cited by the decree-holder and the Court which passed the decree following this ruling held that the property is not 'land'. 1 see no reason to dissent from that opinion and hold that the property in dispute is not 'land' under the Punjab Alienation of Land Act. Even if the property be considered as 'land' Punjab National Bank Ltd. Ferojepore City v. Ram Karan Ramjilal A.I.R. 1940 Lah. 370 is a direct authority for the proposition that when the liability to sale of the property is determined in the decree the execution Court cannot refuse to execute the decree on account of the prohibition contained in Section 116, Punjab Alienation of Land Act. ChKajju Ram v. Muzaffar Ahmad A.I.R. 1936 Lah. 845, Sahib Dayal v. Jamaluddm A.I.R. 1937 Lah. 194 and Ahmed Din v. Ghulam Rasul A.I.R 1934 Lah. 609 (1) cannot be held good law in the face of the Full Bench authority.

10. Under issue No. 3 the learned Judge held that the objection was barred under the Full Bench authority referred to above, which is based on principles analogous to res judicata.

11. On 21st December 1944, the executing Court passed an order for sale of the property that it held was sale deed (saleable?) in view of the decision of previous day. It fixed 11th February 1945 as the date for the sale. The judgment-debtor realising that in pursuance of this order the mortgaged property may be sold and not deterred by the adverse decision of the Court on his two sets of objections presented a third set of objections to the executing Court by a petition dated 17th January 1945. He wanted to put off the actual sale fixed for 11th February 1945 somehow. In the third petition, presented by the judgment-debtor an. objection was taken under Section 10 of Act II [2] of 1936 (Debtors' Protection Act).

12. It was alleged that the property ordered to be sold was either a standing crop or trees and was thus exempt from sale. The decree-holder contended that the trial of this objection was barred by reason of the application of the rule of constructive res judicata. It may be pointed out that' this objection was not raised in the earlier two petitions and was only raised when an order for sale of the mortgaged property had been made by the executing Court. Such an order could not have been made by the Court if this objection had been raised earlier and there is no gainsaying the fact that of was open to the judgment-debtor to raise this objection at any time before the order of the sale was made by the Court and if he raised this objection and was successful in this plea the executing Court could not have made the order for the sale of the property. By an order dated 1st February 1945 the executing Court dismissed this objection on the ground of res judicata. It was further observed that the words used in Section 10 of Act II [2] of 1936 exempted the liability of the property to attachment or sale in execution of a decree and were similar to the language employed in Section 60, Civil P.C. Under that section, it had been held that a mortgage decree is outside its purview and that the exemptions contained in the section only apply to a money decree. On similar grounds, the executing Court reached the conclusion that Section 10 of Act II [2] of 1936 did not affect the case of mortgage decrees. It further expressed an opinion that it was doubtful whether hina plants could be covered by the definition of 'standing crops.

13. The judgment-debtor preferred appeals against both the orders of the executing Court, namely against the one made on 20th December 1944 dismissing his first two sets of objections and also against the order dated 1st February 1945 dismissing his third set of objections. Both these appeals were heard by the District Judge, Hissar, at Gurgaon and were dismissed on 1st April 1946. In the one appeal contest was only raised under Issues 2 and 3 and the learned District Judge held that the executing Court could not go behind the decree in execution proceedings and that if there was any contravention of Section 16, Alienation of Land Act, by the decree', the proper course was to attack the decree itself and not a subsidiary order passed in execution. As regards the objection preferred under the Punjab Debtors' Protection Act the learned District Judge was of the opinion that as the liability of the property for sale had already been determined, this plea was barred on the principle of constructive res judicata. He was also of the opinion that as the decree-holder was a bank registered under the Companies Act and the loans by it did not come within the purview of the Act, hence the objection had no force. He also affirmed the opinion of the executing Court that mortgage decrees were outside the scope of Section 10, Punjab Debtors' Protection Act. The judgment-debtor, therefore, was unsuccessful in respect of all these objections raised against the process of execution being issued in the Court of the District Judge. He, therefore, preferred two second appeals to this Court and these were heard by my brother Achhru Ram who made a reference of the points that arose in these appeals to a Full Bench by his order dated 31st March 1947.

14. As indicated above, the points that arise for decision in both these appeals are these:

(1) Whether the sale of the property directed to be sold under the final mortgage decree is barred by Rule 10, Punjab Debtors' Protection Act, and whether the objection raised under cover of this section on the 17th January 1945 is not barred by the rule of constructive res judicata?

(2) Whether the executing Court had no jurisdiction to sell the mortgaged property as directed by the final mortgage decree in view of the provisions of Section 16, Punjab Alienation of Lund Act?

(3) What precisely is the property that his been directed to be sold by the final mortgage decree?

15. The argument under Section 10, Punjab Debtors' Protection Act, can be considered in three different aspects'. In the first instance, it has to be determined whether that Act has application to the case of debts or loans advanced by limited companies and banks to their customers. In order to find a correct answer to this point, it is necessary to examine the various provisions of this Act and then to determine its scope. This Act has been enacted to provide for the more effective protection of debtors in the Punjab and its preamble runs thus:

Whereas it is expedient for the more effective protection of debtors to modify the existing law on certain, points and to amend the law with respect to persons carrying on business as money-lenders.... It is hereby-enacted as follows:

16. In Section 2 of the Act which is the interpretation clause the expressions 'Bank,' 'Company' ' Co-operative Society,' 'Loan', ' Money-lender', 'Trader' etc., etc., have been defined, 'Loan' has been defined as follows:

Loan means an advance whether of money or in kind at interest and shall include any transaction which, the Court finds to be in substance a loan, but it shall not include: (i) a deposit of money or other property in a Post-Office Savings Bank or any other bank, or in a company or with a co-operative society; (ii) a loan to or by, or a deposit with any society or association-registered under the Societies Registration Act, 1860, or under any other enactment for the time being in force;, (iii) a loan advanced by the Provincial Government or by any local body authorized by the Provincial Government; (iv) a loan advanced by a bank, a co-operative-society or a company whose accounts are subject to audit by a certised auditor under the Indian Companies Act, 1913; (v) a loan advanced to a trader; (vi) an. advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, other than a promissory note; (vii) a transaction which is, in substance, a mortgage or a sale of immovable property.

Money-lender' has also been defined in Sub-section (7) in the following terms:

Money-lender means a person who, in the regular course of business, advances a loan as defined in this Act and shall include the legal representatives and the successor-in-interest, whether by inheritance, assignment or otherwise, of the person who advanced the loan.

It is quite clear that the dealings of a cooperative society or a company with its customers are outside the definition of the phrase 'loan' and they do not fall within the definition: of ' money-lender' given in the Act. A transaction of mortgage or sale of immovable property is also outside the purview of this definition. In Section 3 definition has been given for the word 'land' as used in the Act and for the expression 'Collector'. It is significant that though the interpretation clause defines the various expressions mentioned above, in none of the Sections 4 to 11 any of the expressions given in the interpretation clause find any mention. In Section 12 alone, the expression 'money-lender' has been used. It is, therefore, a matter for enquiry whether in the interpretation clause any of these expressions would have been defined if they were not intended to be an important part of the statute. If these definitions were not an important part of the statute then what was the object with which the Legislature enacted Section 2 of the Act. As the statute is silent on this subject, and the matter is not free from ambiguity therefore in order to find an answer to this question, it becomes necessary to refer to the preamble which has been cited above. This course is* admissible in law in the situation that has arisen. The statute in the interpretation clause gives definitions of certain expressions and then does not employ them in any of the sections except perhaps in one in which one definition has been used. Reference in this connection may be made to Craies on Statute Law, Edn. 4, p. 183. The following quotation from this author can be appositely cited:

The preamble, said Pollock G.B., in Salkeld v. Johnson 1848-2 Ex. 256) is undoubtedly part of the Act'. So also, in Davies v. Kennedy, Christian L.J. said: 'The preamble which of course is a most important part of the statute.... Whether the preamble be considered as an integral part of the statute or not, the general rule with regard to its effect upon the enacting part of the statute has always been that if the meaning of the enactment is clear and unequivocal without the preamble, the preamble can have no effect whatever.' 'The preamble of the statute' says Coke, in 1 Inst. 79a, 'is a good means to find out the meaning of the statute, and as it were a key to open the understanding thereof. 'In the Sussex Peerage Claim the Judges enunciated the rule as follows: 'if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Dyer C.J. is a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress'. This rule was thus stated in Powell v. Kempton Park Racecourse Co. 1899 A.C. 143 by the Earl of Halsbury: 'Two propositions are quite clear, one that a preamble may afford useful light as to what a statute intends to reach, and the other that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment. But still the preamble is the key to the statute, and affords a clue to the scope of the statute, where the words construed in themselves without the aid of the preamble are capable of more than one meaning.

17. A Division Bench of this Court in Darbar Patiala v. Firm Narain DasGulab Singh A.I.R. 1944 Lah. 302 observed as follows:

The preamble of an Act which is a good means of finding out its meaning and is a key to the understanding of it may be consulted to keep the effect of the Act within its real scope with the object of explaining or elucidating its provisions or for the purpose of keeping it within its proper limits to which its general language may be found to have been intended to apply, although this can only be done when its enabling provisions are open to doubt or when in giving full effect to their meaning a Court may be faced with the situation of having to express against its validity, Rule g., on the ground of its being ultra vires of the body which passed it.

18. In the light of the observations cited above, in order to determine the scope of the Punjab Debtors' Protection Act and to find whether the Indian companies or co operative societies or mortgages and sales are affected by the various provisions of this Act, reference has to be made to the preamble of the Act as without this reference it is not possible to determine the precise scope of the various sections contained in this Act.

19. The preamble lays down that the Act was enacted for the more effective protection of debtors and to modify the existing law on certain points and to amend the law with respect to persons carrying on business as money-lenders. If the Act is taken to have been enacted for protection of debtors from money-lenders, then it is quite clear that it can have no application to the case of loans advanced by banks, cooperative societies or companies as they are outside the definition of the phrase 'loan' as given in Section 2(6). Money-lender has been defined as a person who advances a loan as defined in the Act. The banks, co-operative societies and companies are obviously not money-lenders within the contemplation of this statute and the Act cannot be said to have been enacted to give protection to debtors against banks, companies and co-operative societies.

20. The, word 'debtor' has not been defined in this Act. In these circumstances, it is permissible to refer to the definition of this phrase in a sister Act of the Punjab Legislature which undoubtedly is in pari materia with this Act, namely, the Punjab Belief of Indebtedness Act, 1934. Both these Acts have a common object in view i.e., the relief of the debtor and his protection against the excesses of the money-lenders. They can be styled as twin children of the Punjab Legislature produced in pursuance of its policy of safeguarding the interests of debtors against rapacious money-lenders. The expressions 'debt' and 'debtor' in the Punjab Relief of Indebtedness Act have been defined as under:

Debt includes all liabilities of a debtor in cash or in kind, secured or unsecured, payable under a decree or order of a civil Court or otherwise, whether mature or not, but shall not include debts incurred for the purposes of trade, arrears of wages, land revenue or anything recoverable as an arrear of land revenue, or any debt which is barred by the law of limitation, or debts due to Co-operative Banks or to Co-operative Societies or to the Imperial Bank of India or to any banking company registered under the Indian Companies Act, 1913, prior to the first day of April, 1937, or any bank included in Schedule II, to the Reserve Bank of India Act, 1934,other than debts transferred to such societies, banks or banking companies during the pendency of an application under Section 9 in which such debts could be taken into consideration for the purposes of this Act, or debts transferred to such Foeietles, banks or banking companies on or after 2nd day of September 1938, if in the opinion of the Board such transfer was effected with a view to avoid the operation of this Act.

21. 'Debtor' means a person who owes a debt and:

(i) who both earns his livelihood mainly by agriculture, and is either a landowner or tenant of agricultural land, or a servant of a landowner, or of a tenant of agricultural land, or

(ii) who earns his livelihood as a village menial paid in cash or kind for work connected with agriculture or

(iii) whose total assets do not exceed five thousand rupees;

Provided that a member of a tribe, notified as agricultural under the Punjab Alienation of Land Act, 1940, shall be presumed to be a debtor as defined in this section until it is proved that his income from other sources is greater than his income from agriculture.

The banks, co-operative societies and companies are outside the scope of the definition. The result, therefore, is that the phrase 'debtor' for whose protection the Punjab Debtors' Protection Act was intended and the phrase 'money lender' against whose acts the debtor had to be protected do not within their purview bring in the ca3e of banks, co operative societies and companies and that being so, the Act has no application to the present case as the loan in the present instance was advanced by a bank on the foot of a mortgage. Moreover, the nature of the transaction being a mortgage for that reason as well it is outside the scope of the Act.

22. It was urged that in Section 9 reference had been made to the case of a mortgage of ancestral land as being not covered by that section. It was argued that if mortgages were outside the scope of the Act, the Legislature would not have enacted over again an exception regarding mortgage transactions in Section 9. In my opinion, in Section 9 this exception was again made as a matter of abundant precaution and in the context of that section it appeared necessary to repeat what had already been excepted of the scope of the Act by reason of the preamble read with the interpretation clause. Next it was argued that the interpretation clause was enacted simply for the purpose of Section 12 of the Act in order to determine the question of the burden of proof. In my opinion, the' whole of this clause was unnecessary for that purpose. If the intention of the Legislature was to give only the meaning of the phrase 'money-lender' used in that section, this could have been done without defining the different expressions contained in the interpretation section. For the reasons given above, I hold in agreement with the learned District Judge that the Debtors' Protection Act has no application to this case because the creditor is a bank and therefore the objection raised by the judgment-debtor was rightly repelled in the two Courts below.

23. The second aspect of this question is that Section 10 of the Act has a limited application and only governs cases of money decrees and not cases of mortgage decrees. To appreciate the point raised it is necessary to set out the provisions of that section. It reads thus:

Notwithstanding anything to the contrary contained in any other enactment for the time being in force:

(1) standing crops, other than ooiton and sugarcane, shall not be liable to attachment or sale in the execution of a decree;

(2) standing trees apirt from the land on which they stand shall not be liable to sale in the execution of a decree or an order of a Court.

It was argued on behalf of the objector that hina shrubs yielded crop and it being a crop other than cotton and sugarcane was not liable to attachment or sale in the execution of the decree.. On the other hand, the decree-holder's counsel urged that the phraseology employed in Sub-section (1) of Section 10 indicated that this section had in contemplation only 'decrees for money and not decrees which directed sale of the mortgaged property. On the analogy of Section 60, Civil P.C., it was urged that the phrase 'attachment or sale' should be construed as meaning attachment and sale and as in the case of mortgage decrees there could be no attachment, therefore, those decrees were excluded from the operation of the section. This contention finds support from a Full Bench decision of this Court in Allah Bakhsh v. Chet Ram A.I.R. 1945 Lah. 123 (FB). The phraseology employed in Section 60(1)(c) is identical with the phraseology employed in 3.10(1), Punjab Debtors' Protection Act, and both sections are in pari materia inasmuch as they exempt from attachment and sale certain kinds of property belonging to a judgment-debtor. The Full Bench held that a house or other buildings belonging to an agriculturist and occupied by him are not exempt from sale under Section 60(1)(c). Civil P.C., in execution of a decree for sale passed on the basis of a mortgage of the said property executed by the said agriculturist. It was laid down in this case that Section 60 applies only to decrees the execution of which required attachment and sale and as the execution of a mortgage decree did not require attachment therefore the section had no application. The Lahore High Court and other Courts in India for a period of over sixty years have held that Section 60 does not apply to mortgage decrees and that the words 'attachment or Bale' in the section were equivalent to the phrase 'attachment and sale.' In view of this long course of decisions the interpretation placed on the section during all these sixty years was maintained on the rule of stare decisis. It must, therefore, be taken as settled in this Court that the exemption mentioned in Section 60(1)(c), Civil P.C., has no application in cases where a mortgage decree is being executed. In my opinion, this analogy fully applies to a case where an interpretation has to be placed on Section 10(1), Punjab Debtors' Protection Act. I am, therefore, of opinion that for the reason above stated that section has no application to the facts of the present case as the decree sought to be executed here is a mortgage decree in which there is a direction for sale of the property mortgaged.

24. As regards the third aspect from which the applicability of the Punjab Debtors' Protection Act has to be viewed in this case the matter seems to me not open to much controversy. It is true that the provisions of Section 11, Civil P.C., have no application to execution proceedings; but the rule of res judicata on general principle governs the proceedings in execution and on the same principle the rule of constructive res judicata has application to cases where a certain decision could not have been given by the executing Court if the matter sought to be raised earlier (later?) would have been raised at an earlier stage of the proceedings. In this case, as pointed out above, the order of sale could not have been made by the executing Court if in the first two sets of objections the objection raised on the third occasion had been agitated before the executing Court and a decision invited on that question. The question of the sale ability of this property in execution of the mortgage decree after hearing the objections of the judgment-debtor was decided on 21st December 1944 by the executing Court and a date was fixed for the sale of the property. That decision presupposes that there was no bar to the sale of this property in execution of the decree In these circumstances, the judgment-debtor was bound to raise all questions that affected the saleability of the property before that order was made and if he failed to raise these questions he is barred by the rule of constructive res judicata from reagitating them after that order has been made. If no order for sale had been made in these proceedings, then the matter would have been quite different as the rule of constructive res judicata cannot apply to cases where either partially or wholly the decree has not been satisfied after the rejection of the objections or there has been no actual decision on the point or no order directing the sale has been passed. Reference in this connection may be made to the Full Bench decision in Gauri v Ude A.I.R. 1942 Lah. 153 (F.B.). In that case, however the property had been sold after the order of sale had been made but that distinction doe3 not affect the application of the rule of constructive res judicata to the facts of this case.

25. The result, therefore, of the above discussion is that I affirm the decision of the executing Court and of the learned District Judge to the effect that the objections raised in the third objection petition are void of force and I hold that these were rightly rejected in the two Courts below.

26. The next point for consideration is whether Section 16, Punjab Alienation of Land Act, confers jurisdiction on the executing Court to go behind the decree and to question its own charter. It is a well established rule of law that the executing Court is bound to execute the decree and cannot go behind it. The only exception to this rule is that when the decree is passed by a Court which had no jurisdiction to pass' it, then by reason of the inherent defect of jurisdiction in the Court passing the decree the executing Court can ignore it but the executing Court cannot refuse to execute the decree because it is against law or contravenes any provisions of any statute. It was argued that Section 16, Punjab Alienation of Land Act, has enacted a second exception to the general rule above stated and that the executing Court has authority to refuse to sell the property ordered to be sold by the final mortgage decree. Section 16 runs thus:

16 (1) No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any Civil or Revenue Court, whether made before or after the commencement of this Act.

(2) Notwithstanding anything contained in any other enactment for the time being in force no land belonging to a member of an agricultural tribe shall, in execution of any decree or order of any Civil or Revenue Court, whether made before or after the enactment of this sub-section, be leased or farmed for a period exceeding twenty years or mortgaged except in one of the forms permitted by Section 6.

(3) Nothing in this section shall affect the right of any Government to recover arrears of land revenue, or any dues which are recoverable as arrears of land revenue, in any manner now permitted by law.

From a perusal of the language employed in the section it is clear that the section does not enact an absolute bar in all eventualities regarding the sale of property of an agriculturist in execution of a decree. The Government can always recover arrears of land revenue or a number of other dues which are recoverable as arrears of land revenue by sale of the property belonging to an agriculturist. The prohibition, therefore, only applies to cases of private litigants.

27. On this section it was argued by the decree-holder's counsel that this bad application only to the cases of money decrees and that the mortgage decrees were outside its scope. On the other hand, the counsel for the judgment-debtor urged that the bar mentioned in the section was an absolute one and covered all decrees whether money decrees or mortgage decrees. Emphasis was laid on the words used in the section 'any decree.' It was vehementally contended that this section brought in an express prohibition regarding the sale of an agriculturist's land and was contained in a special law enacted for a special purpose and it engrafted an exception on the ordinary rule of law that an executing Court could not go behind the decree and that it in txprtss terms conferred jurisdiction on the executing Court to ignore the decree if it directed a sale of the mortgaged property belonging to an agriculturist. It was said that it was a rule of public policy that was enacted in the section and the Court must stay its hands if it finds that the property it is going to sell belongs to an agriculturist and that that result cannot be achieved even with the consent of the judgment-debtor or by any act of waiver on his part. After a careful consideration of the contentions raised by the learned Counsel, I have reached the conclusion that these contentions are not well founded and that the section was not intended to empower the executing Court to question the validity of the decree during execution proceedings. No occasion or necessity arose for doing that because in my opinion if the decree contravened the provisions of the Punjab Alienation of Land Act the Legislature had provided ample remedies for that and this section was meant to have application to only those cases where the contravention of the Punjab Alienation of Land Act was going to be committed for the first time by reason of an order of the execution Court or during the execution proceedings. The language of Sub-section (2) of the section sufficiently justifies this conclusion. That section confers jurisdiction on the executing Court to execute the decree in any other manner than by selling the property belonging to an agriculturist. It says in specific terms that the executing Court can lease it or farm it for a period of 20 years or can even mortgage it in one of the forms permitted by Section 6, Punjab Alienation of Land Act. This alternative mode of execution permitted by the section has specific application to decrees for the recovery of money. None of these modes of execution apply to the case of a mortgage-decree. The result, therefore, is that when a decree for money is sought to be executed and a prayer is made for sale of the property of the judgment-debtor who happens to be an agriculturist, the section gives a mandate to the executing Court that it shall not sell the property but it also suggests a method as to how the executing Court will proceed when that event happens. It is told that it can farm the land of the judgment-debtor or can lease it for a period of 20 years or that it can give on mortgage all his land to the decree-holder in any of the forms permitted by Section 6, Punjab Alienation of Land Act. From these provisions, it follows that this section can have no application to the case of a mortgage-decree because if in the case of a mortgage-decree the executing Court declines to carry out the mandate of the Court passing the decree and refuses to sell the property then the decree itself becomes null and void. The executing Court cannot convert a mortgage-decree into a money decree for the purpose of execution and cannot grant relief to the decree-holder by the alternative modes of execution provided in Sub-section (2) of Section 16, Punjab Alienation of Land Act. In these circumstances can it be reasonably argued that though so far as the money decrees were concerned, the Legislature only took away one of the rights of the decree-holder but left other methods of execution open by which he could recover his money but that in the case of mortgage decree the Legislature thought that the decrees should become a complete wash out and that the executing Court is the forum where a result nullifying the decree altogether should be achieved? The view that I have expressed above finds support from the fact that the Punjab Alienation of Land Act and the general law provide ample remedies to the judgment-debtor whose land is directed to be sold by the Court passing the final mortgage decree or in cases where the decree passed by a civil Court contravenes the provisions of the Alienation of Land Act. It is always open to a judgment-debtor to file an appeal against any decree that contravenes the provisions of the Alienation of Land Act and directs that his property be sold on the ground that he is an agriculturist. That remedy is a full and complete remedy and is open even in second appeal. The decree can always be set right if it contravenes the provisions of the Punjab Alienation of Land Act. The Punjab Alienation of Land Act, Section 21-A has enancted a further provision empowering the Deputy Commissioner to approach this Court by a petition in revision for bringing a decree that contravenes the provisions of the Punjab Alienation of Land Act in conformity with the provisions of that Act.

28. The result, therefore, is that a two fold remedy has been provided in the Act and in the general law for correcting decrees which contravene the provisions of Punjab Alienation of Land Act. In these circumstances, in my view it is not right to hold that in spite of these remedies the Legislature intended that the executing Court should ignore a decree which contravenes the provisions of the Punjab Alienation of Land Act in spite of the fact that neither I the Deputy Commissioner nor the judgment-debtors has taken advantage of the remedies that existed to cure the defect contained in the decree. In my judgment, what the Legislature intended by enacting Section 16 was that wherever property had to be sold by the order of the executing Court and that can only happen in cases of money decrees, then the executing Court will not order sale of any land belonging to an agriculturist and will not actually sell it while in the case of mortgage decrees the Legislature intended that the matter should be dealt with at the suit stage and any contravention of the Act by the; Court passing the decree should be corrected by the remedies provided in the Act or in the general law. The beneficiary it intention of the Legislature in enacting Section 16 can be given effect to by having recourse to the provisions of Section 21-A, Punjab I Alienation of Land Act. I presume the Legislature knew the functions of the executing Court 'and also knew that its jurisdiction was limited and it could not go behind the decree and could not interfere with any direction of sale contained in the decree. Had it intended to enact that the section is intended to override this rule then it would have been worded as follows: 'An executing Court shall not sell land belonging to a member of an agricultural tribe whether such sale is directed by the decree or has to be made in execution of any decree or order of any Civil or revenue Court.' The Legislature was fully aware that in the case of mortgages it is the Court passing the decree that directs sale of the property mortgaged and that the executing Court cannot go behind it. If it intended to over-ride that rule of law, then it should have clearly used phraseology to indicate that intention. In absence of any clear indication of that intention I am not prepared to hold that Rule 16 governs the case of mortgage decrees. I repel the suggestion made by the learned Counsel for the appellant that the words 'any decree' mean decrees of all kinds. It seems to me that this is synonymous with the phrase 'a decree' and that mortgage decrees are outside the purview of this phrase. This argument can also be supported on the analogy of the phraseology employed in Section 60, Civil P.C. It has been held that that section does not cover the case of mortgage decrees. It only applies to money decrees. There the words used are that certain property will not be sold in execution of 'a decree'.

29. So far as the decisions of this Court and the various Courts on this point are concerned, they are by no means uniform. From the year 1931 to the year 1935, Judges of this Court expressed conflicting opinions on the interpretation to be placed on this section and on the question whether this lection authorises the executing Court to depart from the rule of law that it cannot go behind the decree. From 1936 to 1940 the course of decision has been in favour of the objector's contention but the Full Bench in the year 1941 affirmed the earlier view in preference to the later view and held that Section 16, Punjab Alienation of Land Act, had a limited scope and could not be construed in the wide manner that the judgment-debtor wished it to be interpreted. I proceed now to examine the decisions that have been given on this subject by this Court. In Surjan Chaudhuri v. Tegh Bahadur Singh A.I.R. 1931 Lah. 545 Addison, J. held that the objection that the land being of an agriculturist cannot be sold in execution cannot be raised before the executing Court where the decree itself directs the sale of the land. In this case at the time when the mortgage in dispute was made it was a perfectly valid one and was made by a non agriculturist. A consent decree was. passed on the foot of this mortgage. The equity of redemption in the property mortgaged was later on purchased by an agriculturist. The place of the judgment-debtor before decree therefore had been taken by the purchaser of the equity of redemption who was an agriculturist. On his behalf in the executing Court an objection was taken under the provisions of Section 16, Punjab Alienation of Land Act, that in view of the provisions of that section the Court had no power to sell the land which had been directed to be sold by the consent decree. This objection was repelled by the learned Judge for the reason that the mortgage when made was a valid one. With great respect to the learned Judge I have not been able to see the bearing of this point so far as the applicability of Section 16, Punjab Alienation of Land Act, is concerned. If that section prohibits a sale of the property belonging to an agriculturist then it is the time of the sale that has to be considered and not the time of making the mortgage. The decree in the case itself contravened the provisions of the Punjab Alienation of Land Act It was held in clear terms that the executing Court was right in holding that such an objection could not be taken before it as the sale was ordered by the decree and not in execution proceedings. This decision clearly supports the contention raised on behalf of the decree-holder.

30. In Ganesh Das v. Ganga Singh A.I.R. 1932 Lah. 529 Tek Chand, J. expressed a similar view. It was held that the objection that the judgment-debtor is an agriculturist and the property cannot be sold in execution proceedings by virtue of the provisions of the Act cannot be raised for the first time in execution proceedings.

31. The matter was next examined by a Bench of the Lahore High Court in Thakar Das v. Roshan Din A.I.R. 1933 Lah. 397 Agha Haidar, J., who delivered the judgment in this case, observed that though no executing Court could go behind a decree and that the decree must be executed as it stands, still when a non-agriculturist to whom agricultural land has been mortgaged, applies for sale of the mortgaged property in execution of the final mortgage decree, the executing Court must hold its hand and not put to sale the property which has been rendered non-saleable by the Alienation of Land Act in spite of the fact that decree-holder has obtained a decree for sale of the property. Reliance was placed in this case on certain judgments of the Allahabad High Court which were given under the provisions of the Agra Tenancy Act and under the provisions of the Bundelkhand Alienation of Land Act. The view taken by Addison, J. in Surjan Chaudhuri v. Tegh Bahadur Singh A.I.R 1931 Lah. 545 was explained on the ground that the observations made in that decision were merely obiter. With great respect to the learned Judge I have failed to see how any observations made by Addison, J. in the above-mentioned case were obiter. The decision of the case was based on those observations. It appears that the attention of the bench was not drawn to the decision of Tek Chand, J. mentioned above.

32. This Bench decision was followed by Bhide, J. in Ahmed Din v Ghulam Rasul A.I.R. 1934 Lah. 609 (1). The learned Judge said that the question that fell for decision was not free from difficulty but as he was bound by the Division Bench ruling reported in Thakar Das v. Roshan Din A.I.R. 1933 Lah. 397 he had to uphold the decision of the lower Court.

33. In spite of the decision of the Division Bench in Thakar Das v. Roshan Din A.I.R. 1933 Lah. 397, Skemp, J. in Budhu Ram v. Ali Shah A.I.R 1935 Lah. 443, held that where a decree ordered sale of certain property for the realization of a debt, the objection that the judgment-debtor is an agriculturist and that the property cannot be sold in execution proceedings by virtue of the Alienation of Land Act, cannot be raised for the first time in execution proceedings. The learned Judge further observed that if there is a contravention of Section 16, Alienation of Land Act, by the decree, the proper course is to attack the decree itself and not a subsidiary order passed in execution. The learned Judge followed the earlier decision of Addison, J. and the decision of Tek Chand, J. His attention was not drawn to the Bench decision mentioned above.

34. In Chhaju Ram v. Muzaffar Ahmad A.I.R. 1936 Lah. 845 another Bench of the Lahore High Court considered this question and ruled that though in the majority of cases the decree of the Court, must be executed as it stands, yet when that decree would have the effect of nullifying an Act of the Legislature the Court must hold its hand. Under Section 16 therefore, land belonging to a member of an agricultural tribe could not be sold in execution even though a decree had been obtained by the mortgages for the sale of such-land. The judgment in this case, was delivered by Abdul Rashid, J. The learned Judge observed in respect to Surjan Ghaudhuri v. Tegh Bahadur, A.I.R. 1931 Lah. 545 that the remarks of Addison, J. in that case were in the nature of an obiter dictum, I have already expressed my dissent with this view. About the judgment of Tek Chand, J. in Ganesh Das v. Ganga Singh A.I.R. 1932 Lah. 529 the learned Judge observed that prohibition contained in Section 16 must be given effect to by the executing Court and the prohibition was an absolute one. The view expressed by the Bench in Thakar Das v. Roshan Din A.I.R. 1933 Lah. 397 was accepted and the decision of Skemp, J. in Budhu Ram v. Ali Shah A.I.R. 1935 Lah. 443 was dissented from on the ground that this was not Rupported by the clear and unambiguous phraseology of Section 16, Punjab Alienation of Land Act, and it was also dissented from on the ground that the learned Judge had not considered the Bench decision in ThaJcardas v. Roshan Din A.I.R. 1933 Lah. 397 while, arriving at his own conclusions.

35. The matter came up again for consideration before another Bench of the Lahore Court in Sahib Dayal v. Jamal-ud-Din A.I.R. 1937 Lah. 194. The judgment of the Bench was delivered by Jai Lal, J., and it was observed by the learned Judge that 'the matter is concluded by authority and though I do not feel impressed by the view taken in it, I must decide this appeal on the rule of stare decisis.' From these observations, it is quite clear that the learned Judge felt himself bound by authority and thought that the only way to decide the case was by placing reliance on the rule of stare decisis though the learned Judge's own view in the matter did not seem to concur with the decisions of the Division Benches above cited. With great respect I must observe that, the rule of stare decisis was pressed into service in this case for no justifiable cause. There was no uniformity of decisions for a long course of years in this Court on the point. On the other hand, there was a conflict of decisions right up to the year 1935 and in the year 1937 it could not be held that the rule of stare decisis had application to the ease. As I have said above, Jai Lal, J. threw doubt on the rule that had been laid down in the two Division Benches reported in Chhajju Ram v. Muzaffar Ahmad A.I.R. 1936 Lah. 845 and Thakar Das v. Roshan Din A.I.R. 1933 Lah. 397.

36. In Lala Khazanchi Shah v. HajiNiaz Ali A.I.R. 1940 Lah 16 Bhide, J. followed the rule laid down in the three Division Benches mentioned above. Sitting in Single Bench he was bound to do so.

37. The matter finally came up for consideration before a Full Bench of the Court in Punjab National Bank Ltd. Ferozepore City v. Ram Karan-Ramiji Lal and Ors. A.I.R. 1940 Lah 370 P.B., The question for decision was whether in a case where a person who was not a member of an agricultural tribe had mortgaged his land to another person, who was also a non-agriculturist, by an equitable mortgage and later transferred his ownership of that land to a person who was a member of an agricultural tribe, the mortgages was deprived by Section 16, Punjab Alienation of Land Act of his ordinary legal right of executing his decree by sale of the property. It was held that the scheme of the Act suggested that it wa3 the existing rights of the agriculturists which were to be protected and not necessarily rights which might subsequently accrue to them and therefore any land which had come to an agriculturist or been acquired by him, as distinct from any land which has always been his, must be subject to the same charges and encumbrances as it was before it came to him and it could only be said to belong to him within the meaning of Section 16, Punjab Alienation of Land Act subject to such charges and encumbrances, and that even in his hands it was liable to the extent of them but no more. Blacker, J. who wrote the leading judgment in the case, upheld the contention of the decree-holder and ordered sale of the mortgaged property on the view stated above. Bhide, J. concurred in this view but apart from this view he upheld the contention raised on behalf of the decree-holder to the effect that Section 16 was meant to apply to those cases where the liability of the land to be sold was not already determined by the decree itself and where the executing Court had decided what property should be sold to satisfy the decree; the learned Judge took the view that the section was analogous to Section 60, Civil P.C., and that where a decree to be executed has already determined liability of the property to be sold, the executing Court cannot question the validity of the decree or refuse to carry it out 'and Rule 60 was not intended to override this principle. At P. 19 of the report, the following observations occur:

I am aware of the fact that a wider interpretation has been placed on Section 16, in some rulings of this Court and it has been held that even when the sale of land has been directed by a decree in a mortgage suit the executing Court must refuse to sell the land if it belongs to a member of a notified agricultural tribe. But with the greatest respect, I must say that certain aspects of the question do not appear to have been considered in these rulings. It seems to have been assumed that the object of the Punjab Alienation of Land Act would be defeated unless Section 16 was construed in the manner in which it was construed in these rulings. Bui there seems to be ample provision in the Act itself to ensure that no decree is passed by a Court which will be contrary to provisions of the Act and also if by any chance such a decree is passed, to get it rectified by a Court of appeal or revision. To take for instance, the case of mortgages we find that Section 6 of the Act provides that a mortgage by a member of an agricultural tribe in favour of a person who is not a member of such a tribe must be for a limited period in one of the forms given in the section. If the mortgage is effected in such a form, no question of sale of land in execution of a decree on the footing of such a mortgage can possibly arise.

If, however, a mortgage is effected in a different form in a case falling under Section 6, Section 9, gives power to a Deputy Commissioner to revise it and if such a. mortgage comes before a Court in the course of a suit,, the Court has also to refer the matter to the Deputy Commissioner. If the provisions of Section 9 are complied with no decree will, therefore, be passed for the sale of land belonging to a member of an agricultural tribe where the mortgage is in favour of a person who is not. a member of such a tribe. If the mortgage is in favour of a member of the same tribe, the Legislature has not placed any restriction on the form of the mortgage and presumably the Legislature intended that the ordinary law should take its course in such cases. Lastly, if by any chance Section 9 is overlooked by a Court, and a decree is passed for the sale of land on the footing of a mortgage which contravenes the provisions of Section 6, Section 21-A gives power to the Deputy Commissioner: to refer it to a Court of appeal or revision in order to get it rectified and brought into conformity with the provisions of the Act. In view of these provisions it seems to me scarcely likely that the Legislature could have intended by Section 16, that an executing Court should ignore a decree passed by a Court of law and refuse to carry it out. If it appears to an executing Court that a decree sought to be executed offends against any of the provisions of the Punjab Alienation of Land Act, it can easily stay the proceedings and give opportunity to the party concerned to get it corrected by bringing it, to the notice of the Deputy Commissioner for necessary action under Section 21-A of the Act. If this course is adopted, the objects of the Act will be served and the anomaly of an executing Court questioning the validity of a decree will be avoided.

If Section 16 applies only to these cases where a money decree is passed and the executing Court has to decide what property should be sold to satisfy the decree the' section, will not apply to the present case. As the question has arisen in this case in the course of a suit and) not in execution proceedings.

38. Dalip Singh, J., who was the third member of the Bench, concurred with the view expressed by Bhide, J. as well as with the view expressed by Blacker, J.

39. After a careful consideration of the authorities cited above, I express my respectful agreement with the view taken by Bhide, J. in the Full Bench case in which Dalip Singh, J., concurred and I have already expressed my own view on this matter in the earlier portion of this judgment. In my judgment the decisions in Surjan v. Tegh Bahadur A.I.R. 1931, Lah. 545; Ganesh Das Gaijga Singh A.I.R. 1932 Lah. 529 Budhu Ram v. Ahshah A.I.R. 1935 Lah. 443 and in the Full Bench case, Punjab National Bank Ltd. Ferozepore v. Ram Karan-Ramji Lal A.I.R. 1940 Lah. 370 F.B., lay down the rule of law correctly on the subject and the Bench decisions of the Court in Thakar Das v. Roshan Din A.I.R. 1933 Lah 397 Chhajju Ram v. Muzaffar Ahmad A.I.R. 1936 Lah. 845 and Sahib Dayal v. Jamalud-din A.I.R. 1937 Lah. 194 should be overruled.

40. The learned Counsel for the appellant also placed reliance on certain decisions of the other High Courts in India. First of all, he mentioned a case of the Allahabad High Court' given under the provisions of the Agra Tenancy Act. The Agra Tenancy Act prohibits transfer of occupancy holdings altogether. On this subject in the case of Madho Lal v. Katwari 10 All. 130 Mahmood, J. had ruled that an objection by the judgment-debtor in execution of a decree for enforcement of hypothecation by sale of specific property that the property is not transferable, with reference to Section 9, N.W.P. Rent Act, could not be entertained. It was observed by the learned Judge that it may be that the decree was erroneously passed, but the Court executing that dtcree has no power to go behind it and to decline to execute it, because such a refusal to execute the decree amounts to nullifying the decree altogether. In a later case of Katwari v. Sita Ram Tiwari A.I.R. 1921 All. 118 F.B. a Full Bench of the Allahabad High Court took the view that in view of the provisions of Section 20, Agra Tenancy Act, 1901, a Court executing a decree cannot order an occupancy holding to be sold, no matter whether the decree is a decree directing the sale of the holding or is a simple money decree. No reference was, however, made to the exact provisions of the statute under which that decision was given. The section so far as I have been able to see was more comprehensive than Section 16, Punjab Alienation of Land Act.

41. Reference was also made to a decision of the Patna Court reported in Uchit Lal Misser v. Raqhunandan Tewari : AIR1934Pat666 . This was based on Section 27 of the Santal Parganas Settlement Regulation of 1872. That section again has been very widely worded and does not in any way deal with execution of decrees. The analogy of this section cannot apply to the provisions of Section 16, Punjab Alienation of Land Act.

42. The next case cited was a Single Bench decision of the Madras Court in Adinarayana Chetty v. Chengiah Chetty A.I.R. 1937 Mad. 918. This case did not deal with the powers of an executing Court. The point arose at the stage between the preliminary decree and the final decree. This has therefore, no bearing on the point in issue in the present case. Reference was also made to Bai Suraj v. Haribhai Motabhai : AIR1943Bom54 . There again the statute under which that decision' was given is worded differently from Section 16, Punjab Alienation of Land Act. That case was under Bombay Bhag-dari and Narwadari Act (5 of 1662). Reference was also made to a decision of this Court in Prem Parkash v. Mohan Lal A.I.R. 1943 Lah. 268 given under the Pensions Act in which it was laid down that on grounds of public policy a judgment-debtor could not waive the benefit given to him under the Pensions Act. That decision has no bearing on the present case. It is an admitted proposition of law that where a statute confers a personal benefit on the judgment-debtor he can waive it but where the benefit has been conferred on him on grounds of public policy he cannot by his own waiver give up the benefit that has been conferred upon him.

43. For the reasons given above, I affirm the decision of the executing Court and of the District Judge to the effect that there is no force in the objection of the judgment-debtor that in execution of the decree the property directed to be sold cannot be so sold.

44. As regards the last question, the matter does not require any lengthy discussion. As I have indicated above, the Court that passed the decree clearly held that the property mortgaged was not land but was merely sardrakhti rights and was similar to the property that had been considered in Muhammad Ismail v. Shamhs-ud-din A.I.R. 1920 Lah. 810. The decree that followed this decision was not worded precisely in accordance with the judgment. It is capable of the interpretation that it directed sale of the leasehold rights of the mortgagor in agricultural land. Be that as it may, the executing Court reached the decision that all that could be sold was that had been decided under issue 1 by the Court decreeing the suit and that was the view maintained in the Court of the District Judge. It, however, appears that before my brother Achhru Ram when the matter came up in Single Bench the counsel for the decree-holder in order to escape from the provisions of the Punjab Debtors' Protection Act, Section 10, took up the position that the mortgaged property was leasehold rights in land and that is what had been directed to be sold by the decree 'and that is what he wanted to be put to sale Seetion 10, Punjab Debtors' Protection Act has no application when the sale has to be effected of leasehold rights in land. In view of this contention of the learned counsel, my learned brother found it necessary to examine the question whether the executing Court could go behind the decree and, in view of the conflict of decisions on this point above narrated, he thought it necessary to have the conflict resolved by a reference to the Full Bench. When the matter came up before us the counsel for the decree-holder stated that he had consulted his client and all that his client wanted sold in execution of the decree was the sardrakhti rights which have been directed to be sold by the Court passing the decree under issue 1 and on the basis of which the executing Court had directed sale by its order of 20th December 1944. In this view of the case, in my opinion all that can be sold in execution of the decree is what has been directed to be sold by the order of the executing Court dated 20th December 1944 and no more. I have given an alternative decision on this matter in view of the fact that this decree, holder does not know his mind whatsoever. Before the Court which was trying the suit in order to escape from the provisions of the Punjab Alienation of Land Act he took up the position that what had been mortgaged to him was not land but merely sardrakhtt rights. When he came to the executing Court he prayed that the leasehold rights in the land be sold. Possibly ho thought that having escaped from the Punjab Alienation of Land Act by taking up the argument that only sardrakhti rights had been mortgaged to him later in the executing Court he could take advantage of a badly framed decree and sell the leasehold rights in the land itself. However, when before the executing Court the matter was argued he again took up the stand which he had taken in the Court trying the suit but he again abandoned his position before my learned brother during the course of the hearing of the second appeal in order to get out of the provisions of Section 10, Punjab Debtors' Protection Act. I am not sure what stand he will take in spite of our decision during the further progress of the execution proceed dogs. For these reasons, I have thought it necessary to decide all the points that were raised before us though in view of the statement that was made' by the learned Counsel for the respondent before us it may not have been strictly necessary to consider the question on which the conflict of decisions exists.

45. The result, therefore, is that both these second appeals fail and are dismissed with costs throughout.

Bhandari, J.

46. I am entirely of the same opinion.

Achhru Ram, J

I agree.


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