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1992 DIGILAW 593 (MP)

Bhaiyalal v. Komalbai

1992-09-23

R.C.LAHOTI

body1992
JUDGMENT The Judgment-debtors/petitioners have come up in revision feeling aggrieved by an order dated 30.3.92 of the Executing Court overruling their objections to the maintainability of an application for execution of the decree for specific performance of a contract for sale. There are two contentions raised. It is submitted that the Executing Court should have taken note of the mandatory provisions of the Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi-Dharkon Ka Udhar Dene Walon Ke Bhumi Hadapne Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam,1976 (Act No.3 of 1977), hereinafter referred to as 'Act No.3 of 1977' and should have directed the execution to be dismissed, the transaction between the parties being a 'prohibited transaction of loan'. It is also submitted that the Executing Court should have noticed the provisions of section 28 of the Specific Relief Act, 1963 and rescinded the contract. The Executing Court mainly relied on the concept that the Executing Court could not have gone behind the decree passed by a competent Court and that objections having been preferred belatedly were not available for consideration. Having heard the learned counsel for the parties this Court is satisfied that the Executing Court did commit a jurisdictional error in over-ruling the judgment-debtor/patitioners' objections and hence the impugned order is liable tobe set aside. Act No.3 of 1977 was published in Madhya Pradesh Government Gazette (Extraordinary) dated 31.1.1977 though given retrospective effect by providing that it would be deemed to have come into force on the 1st day of January 1971. Needless to say that Act No.3 of 1977 is a beneficial piece of legislation intended to protect the weaker section of the society, by-passing the niceties and ignorance of law. All prohibited transactions of loan as defined in section 2(f) are within the embarrass of the Act and this Act is given an overriding affect over other laws. The Act having been brought into force, it is bound to be noticed by every Court of law before which any proceedings are pending in relation to land attracting the applicability of the Act and the proceedings are then to be decided in accordance with the provisions of this Act. The Act having been brought into force, it is bound to be noticed by every Court of law before which any proceedings are pending in relation to land attracting the applicability of the Act and the proceedings are then to be decided in accordance with the provisions of this Act. It needs no logic to demonstrate that the decree having been passed on 18.1.1971, the pleas under the Act were not and could not have been available to the defendant/judgment-debtors during the pendency of the suit, the Act itself having seen the light of the day on 1.1.1977. The only forum before which the protection under the Act could have been invoked was before the Executing Court where it was rightly invoked. It was obligatory on the part of the Executing Court to have entertained the pleas of the judgment-debtors and decided the same on merits. Section 28 of the Specific Relief Act contemplates rescission of a contract for sale though the rights of the parties stand merged in a decree. The plea is open to be taken before the Executing Court. The new provision corresponds with its predecessor provision contained in section 35(c) of the old Act, but is a departure from the' old law in the sense that the new provision does not contemplate any independent suit being filed, a bare application for rescission would suffice. Whether or not the Executing Court would allow rescission is a different matter. The learned counsel for the petitioners placed reliance on Hungerford Investment Trust Ltd. v. Haridas Mundhra ( AIR 1972 SC 1826 ); Shri Murti Parasnathji v. Gulabchand Mithulal (AIR 1943 Nagpur 111) and M.Sakuntala Devi v. V. Sakuntala and others ( AIR 1978 AP 337 ). However, no opinion-is being expressed on merits of the contravention except that it is available to be raised by the judgment-debtors, for the reason that the merits are being left to be adjudicated upon by the Executing Court. Last but not the least, it is submitted that the decree-holders are violating the provisions contained in section 165(4) of the Madhya Pradesh Land Revenue Code, 1959 inasmuch as if the decree is allowed to be executed it would result in decree-holders becoming entitled to land exceeding the prescribed limites. The revision is allowed. The impugned order is set aside. Last but not the least, it is submitted that the decree-holders are violating the provisions contained in section 165(4) of the Madhya Pradesh Land Revenue Code, 1959 inasmuch as if the decree is allowed to be executed it would result in decree-holders becoming entitled to land exceeding the prescribed limites. The revision is allowed. The impugned order is set aside. The matter is sent back to the Executing Court with a direction to hear and dispose of on merits all the contentions raised by the judgment-debtor/petitioners attacking the maintainability of the execution application and availability of the decree for execution. The revision stands disposed of accordingly. There shall be no order as to the costs. Parties through their respective counsels are directed to appear before the Executing Court on 2.11.1992.