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1974 DIGILAW 305 (ALL)

Dukhi v. Board Of Revenue

1974-07-30

D.S.MATHUR, N.D.OJHA

body1974
JUDGMENT : D.S. Mathur, CJ. This order shall govern Special Appeals Nos. 385 and 532 of 1969 in which common questions of law are involved. Both the writ petitions were heard together and decided by one judgment. 2. The material facts of the case are that the Gaon Sabha of village Mahuwa Kothi applied to the Collector u/s 212-A of the U.P. Zamindari Abolition and Land Reforms Act for the ejectment of the Petitioners on the ground that the land was of public utility and they had been admitted as tenants thereof after the 8th of August, 1946. Under the amended provisions the Gaon Sabha had two alternative remedies one by way of a suit u/s 212 and the other by making an application u/s 212-A. The latter section provides for a summary procedure leaving it open for the party against whom an order of ejectment is passed to institute a suit to establish his rights. The applications u/s 212-A were allowed and an order of ejectment was passed on 26-12-1958. No application for execution was made within a period of one year. Such applications were made within three years period. 3. In pursuance of the said execution applications possession was delivered to the Gaon Sabha before the 15th of April. 4. The dispossession of the Petitioners was challenged in revision on two grounds firstly that the execution application was barred by limitation and, secondly, that delivery of possession before the 15th of April was irregular. The Additional Commissioner made a reference to the Board of Revenue but the Board of Revenue did not accept his views and rejected the reference. The Petitioners then challenged the orders of the Board of Revenue by way of writ petitions under Article 226 of the Constitution which met with the same fate, and these special appeals are by the Petitioners in which similar points have been raised. 5. The U.P. Zamindari Abolition and Land Reforms Rules provide for limitation for an application for execution of a decree but not for the execution of an order. The period prescribed for the execution of a decree is one year. 5. The U.P. Zamindari Abolition and Land Reforms Rules provide for limitation for an application for execution of a decree but not for the execution of an order. The period prescribed for the execution of a decree is one year. It was strongly contended on behalf of the Appellants that the reliefs granted under Sections 212 and 212-A are similar and it will be highly inequitable that where a suit for ejectment has been instituted, there will be a limitation of only one year for the execution of the decree while if the Gaon Sabha decided to seek the summary remedy u/s 212-A there will be no limitation, or there will be a larger limitation of three years. An anomaly does exist, but on this ground alone we shall not be justified to ourselves prescribe a period of limitation for an application for execution of an order of ejectment u/s 212-A. Nor shall we be justified to include "order" in "decree" on the ground that otherwise injustice would be done to the judgment-debtors. A finding on the question must depend on the other provisions of the Act. 6. The expression "decree" or "order" has not been defined in the U.P. Zamindari Abolition and Land Reforms Act nor has it been defined in the U.P. General Clauses Act. The definition of "decree" as contained in the CPC cannot be of any help to the Appellants as the definition applies to final order passed in a suit and not in a proceeding. 7. The U.P. Zamindari Abolition and Land Reforms Act has made difference between "a decree for ejectment" and "an order for ejectment". The expression "decree for ejectment" has been used in Section 211(2) and the expression "decree for possession" in Section 212-B. On the other hand, the expression "order of ejectment" has been used in summary provisions like Sections 211-A and 212-A. Where the Legislature has made a distinction between a decree and an order for ejectment, Courts of law will not be justified to hold that both are covered by the word "decree". Similarly in Section 331, the words used are "suit, application or proceedings" but at a subsequent place the word "proceedings" alone was used which will naturally cover a suit and application also. 8. Similarly in Section 331, the words used are "suit, application or proceedings" but at a subsequent place the word "proceedings" alone was used which will naturally cover a suit and application also. 8. We, therefore, agree with the learned single Judge that the U.P. Zamindari Abolition and Land Reforms Rules provide for limitation for the execution of a decree and not for the execution of an order. Therefore, the present execution applications, even though moved after one year were maintainable. The anomaly is however, one which should be resolved either by the Legislature by amending the U.P. Zamindari Abolition and Land Reforms Act or by the State Government by amending the Rules by providing limitation for execution of orders also. 9. An irregularity was committed when possession was delivered to the Gaon Sabha before the 15th of April, but the irregularity is not such that we may direct restitution of possession. The ends of justice shall be met if the Petitioners are duly compensated for the loss suffered as a result of early delivery of possession. 10. Both the special appeals have no force and they are hereby dismissed. The execution court is, however, directed to assess the loss, if any, suffered by the Petitioners as a result of the early delivery of possession and to take steps for payment of this compensation by the Gaon Sabha to the Petitioners judgment-debtors. There will be no restitution of possession to the Petitioners. Costs easy.