Section 43 of the Abolition Act provides as follows Any land which immediately before the date of vesting, was held in absolute occupancy or occupancy right or recorded as Sir land, shall number be liable to attachment or sale in execution of a decree or order for the recovery of any debt incurred before the date of vesting except where such debt was validly secured by mortgage of or a charge on the absolute occupancy or occupancy land or the cultivating right in the sir land.
The decree holder Mohd.
In view of the provisions of the Abolition Act the proprietary rights in the village vested in the State.
having deprived the proprietors of their proprietary interest gives some protection to them in respect of their new rights in the home farm which has become the Malik makbuza of the proprietor.
On October 1, 1951, the fields under attachment were put to sale and were purchased by the respondent, Mohd.
293 of 1961.
The judgment of the High Court passed on December 24, 1959, and the present appeal is filed against that judgment with the special leave of this Court.
The section applies to decrees in respect of debts prior to the vesting in the State as in the case here.
In the present case the attachment was before, and the sale after the date when the Abolition Act came into force in this area.
This was provided by s. 49 of the Act which, in so far as relevant to the present purpose, read as follows 49, 1 A proprietor, who temporarily or permanently loses, whether under a decree or 194.
Appeal by special leave from the judgment and order dated December 24, 1959 of the Madhhya Pradesh High Court in Misc.
But the cultivating rights in the sir lands which were his home farm are saved to him and under s. 38 of the Abolition Act he becomes a malik makbuza of these fields.
There being numbersecured debt and the cultivating rights number having been mortgaged or charged there companyld be numbersale of these fields after the Abolition Act came into force.
By this section attachment and sale of the cultivating right in sir lands is barred unless there is a mortgage of or a charge on, the cultivating rights.
In execution of the decree Mohd.
Under the Central Provinces Tenancy Act, 1920, a proprietor losing his right to occupy sir land, as a proprietor became, from the date of such loss of right an occupancy tenant of sir lands.
On March 31, 1951, before the sale took place, the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act, 1950 M. P. Act No.
On further appeal by the auction purchaser the order of the Additional District judge was reversed and the auction purchaser was put in possession of the property on April 16, 1955.
Yusaf had only a money decree and the attachment cannot be said to have created a charge on the attached property so as to make it a secured debt within the latter part of s. 43.
Thus by the operation of the Abolition Act, the proprietor ceases to be the proprietor of the estate or village including the sir lands appurtenant to the proprietorship.
3 of 1959.
Home farm is defined by s. 2 g i as land recorded as sir and khudkasht in the name of the proprietor in the annual papers for the year 1948 49.
The attachment was made on September 28, 1950.
The appellant raised further objection while the auction purchaser asked for mesne profits under s. 144 of the Code of Civil Procedure.
The judgment debtor appealed against the order dismissing the application and on May 1, 1952, the Additional District judge, Bilaspur, set aside the sale, and possession of the property was restored to the appellant.
On the passing of the proprietary interest to the State what remains to the proprietor is his cultivating rights in the sir fields and the Abolition Act provides in s. 4 2 that the proprietor shall companytinue to retain the possession of his home farm land.
Thus far there is numberdispute.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
1 of 1951 was made applicable to that area.
Second Appeal No.
order of a Civil Court or a transfer or otherwise, his right to occupy his sir land, in whole or in part, as a proprietor, shall at the date of such loss become an occupancy tenant of such sir land except in the following cases, a when a transfer of such sir land is made by him expressly agreeing to transfer his right to cultivate such sir land or b when such sir land is sold in execution of, or foreclosed under a decree of a Civil Court which expressly directs the sale or foreclosure of his right to cultivate such sir land.
1277/7/ against the appellant, Ahmad Hafiz Khan, on January 14, 1950.
The objection of the appellant was dismissed by the Civil judge and his successive appeals to the District judge and the High Court also failed.
Yusaf obtained a money decree for Rs.
The other sub sections are number relevant The effect of the loss of proprietorship by reason of the Abolition Act is almost the same except that a new right is created in the quondam proprietor in respect of his sir lands.
Yusaf attached two annas and 5 7/45 pies share of the appellant in Mouza Tumhari, Tahsil Sakti, District Bilaspur, alongwith sir and khudkasht lands appurtenant thereto.
Ganpat Rai, for the respondent.
S. Barlingay and A. G. Ratnaparkhi, for the appellant.
The appellant filed an application setting forth objections under Order 21 Rule 90 of the Code of Civil Procedure but the application was dismissed and the sale was companyfirmed on February 1, 1952.
Both the appellant and the auction purchaser applied to the executing companyrt.
The judgment of the Court was delivered by HIDAYATULLAH J. One Mohd.
March 4.
Hasan Khan.
There was numbermortgage of or charge on the cultivating rights in Sir.
The Abolition Act.
