Research › Browse › Judgment

Allahabad High Court · body

1937 DIGILAW 106 (ALL)

Basore Singh v. Sant Kumar Minor through Mst. Rano Rani

1937-04-09

BENNET, SULAIMAN

body1937
JUDGMENT Sulaiman C.J. and Bennet J. 1. This is a second appeal by the judgment-debtor under the following circumstances: The opposite party then represented by Seth Chandra Bhan had a simple money decree against the Appellant Basore Singh and an application was made in 1933 to the Court of the Munsif of Lalitpur in Jhansi district in Bundelkhand setting out that the judgment-debtor was an agriculturist and a Thakur by caste and therefore the shares indicated above could not be sold in execution of the decree and the application was for the shares to be leased to the decree holder for a reasonable time. No objection was taken that the Court could not lease the shares or anything of that nature, but the objection taken was that the judgment-debtor had been declared an insolvent on the 23rd March, 1934, and that the property therefore had passed to the rece ver and that execution could not be taken out against it. On the 14th April, 1934, the Munsif passed an order setting out that in view of the provisions of the Bundelkhand Land Alienation Act the property did not vest in the Official Receiver I propose to grant a lease for 20 years in full satisfaction of the decree. 2. An appeal was taken against this order and the question argued on first appeal in the Court of the District Judge was that in regard to the insolvency, and the District Judge held that the property did not vest in the receiver and Section 28, Clause (2) of the Provincial Insolvency Act would not apply. This was his opinion as to what was the legal result in the case, but he also pointed out that if the property did vest in the receiver then the Appellant had no locus stand to appeal. In second appeal the plea of insolvency has been entered but was not pressed, as it is clear that the Bundelkhand Land Alienation Act, Section 3, prevents a transfer of the property and therefore the property would not vest in the Official Receiver u/s 28 of the Province Insolvency Act. In second appeal the plea of insolvency has been entered but was not pressed, as it is clear that the Bundelkhand Land Alienation Act, Section 3, prevents a transfer of the property and therefore the property would not vest in the Official Receiver u/s 28 of the Province Insolvency Act. Argument in the second appeal has been confined to ground 2 which sets out: Because the Munsif has no jurisdiction in law to give a patta of the land of the Appellant for 20 or 16 or any number of years or at all, the whole proceeding is void and of no effect. 3. Now we find from the record that this ground has been taken under a misapprehension. There is no lease granted by the Munsif or order for a lease. All that he stated in the order under second appeal was that he proposed to grant a lease for 20 years. Now the order of the District Judge in appeal was passed on the 16th February, 1935. After that order the case again came before the Munsif and on the 9th April, 1935, he passed an order that the case be referred to the Collector for the purpose of the lease. The Munsif therefore intended to proceed in accordance with Section 72, Code of Civil Procedure, which lays down that in an area where no declaration u/s 68 is in force and the property attached consists of land or a share in land, a temporary alienation may be made by the Collector if authorised by the Court. Considerable argument was made as regards the meaning of this section, but we consider that the section is perfectly clear and that the Court can authorise the Collector to grant a lease and that this was the procedure which the Munsif intended to follow. Other provisions in regard to leases are contained in the third Schedule by which a lease may be granted by the Collector in the case of a decree in a Civil Court for the payment of money where the case comes u/s 68 and there is a notification of the local Government and the third Schedule is applied by Section 69. A more general question has been argued in this case which really does not arise and that question was formulated by learned Counsel for the decree-holder to the effect that a Civil Court had a general right to grant a remedy in execution by itself giving a lease. The Code does not make any provision for such a procedure and in Section 51 the procedure in execution is laid down. One method (b) is by attachment and sale or by sale without attachment of any property. There is no relief of lease prescribed, out in Sub-section (e) it is stated in any other manner as the nature of the relief granted may require and the section states Subject to such conditions and limitations as may be prescribed. 4. Leases are granted under conditions prescribed in Sections 68 and 72 and the third Schedule. There is nothing in Order 21 which authorises execution by leases. On the contrary the order deals with attachment and sale. Rule 30 lays down that every decree for payment of money may be executed by arrest of the judgment-debtor or by attachment and sale of his property or by both. Then follow a number of provisions to the effect that the sale should be conducted in a public manner after a proclamation and the fixation of a date and by a public officer, the Amin, and various opportunities for objections are provided for both before and after the sale and the sale must be to the highest bidder and the Court subsequently ratifies the proceeding of the sale. Now if it had been intended that there should be the granting of lease by the Civil Court in execution of a simple money decree, it is clear that the Code would have made a provision for the manner in which the Court should select the lessee and carry out the procedure, but the Code is entirely silent on any such procedure. There are numerous practical difficulties which would arise if a Court adopted the unusual course of granting a lease itself. Where the Court sell's property the sale is conducted by an Amin and the Court confirms the sale and the matter is final and the Court has no further procedure. There are numerous practical difficulties which would arise if a Court adopted the unusual course of granting a lease itself. Where the Court sell's property the sale is conducted by an Amin and the Court confirms the sale and the matter is final and the Court has no further procedure. On the other hand if a Court were to grant a lease for a long period of years, as in the present case 20 years, then the question would arise of some control over the lessee during this period to see that the lessee made regular payments of rent into Court and the Court would also have to arrange for the payment of the land revenue. The officer who beard the case would be transferred in a few years and his successors would have no personal knowledge of the matter. On the other hand if the Court authorises the Collector or some other officer, such as a receiver, to grant a lease, the Collector in the one case and the receiver in the other is responsible for the collection of rent and for the payment of land revenue and a control can be exercised by the Court where necessary. These are practical difficulties which doubtless led the Legislature to avoid introducing any such procedure as the granting of leases by a civil Court into the Code of Civil Procedure. 5. Learned Counsel for the Respondent relied on a Full Bench ruling of the Lahore High Court reported in Sardarni Datar Kuar v. Ram Rattan (1920) 1 Lah. 192 (F.B.) and this ruling has been referred to briefly by a Bench of this Court in Majhli Dullaiya v. Munna Lal (1932) 1932 ALJ 562. We are of opinion that this question does not arise in the present case as the Munsif intended apparently to act under the provisions of Section 72 Code of Civil Procedure. Accordingly we do not consider it necessary to come to any decision on this argument, but if the case again arises in this Court it will be necessary to examine the matter further. For these reasons we dismiss this execution second appeal with costs.