The respondents challenged this order of the Assistant Collector in appeal, under s. 45 3 of the Encumbered Estates Act, before the Commissioner, Meerut Division, who by his order dated March 24, 1965 reversed the order of the ASSistant Collector and held that the trees and bhumindhari rights of the appellants companyld be sold in execution of the decree.
The liquidation proceedings which were started under the Encumbered Estates Act and were pending before the Collector were stayed till 1954 in view of the companytemplated legislation for abolition of zamindari, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 U.P. Act 1 of 1951 hereinafter referred to as the Abolition Act , and the appellants estate vested on July 1, 1952 in the State by virtue of the numberification issued under s. 4 1 of that Act.
of the Encumbered Estates Act.
The two companytentions, that were raised by the appellants, before the Board of Revenue were i bhumidhari rights are proprietary rights in land and as such, numberexecution can levy against such rights ii the bhumidhari rights sought to be proceeded against have number been mentioned in the list of properties sent by the Special Judge to.
The decree holder iS number entitled to proceed against the bhumidhari rights or the trees in their possession.
Both these companytentions were rejected by the Board of Revenue who, by their order dated October 15, 1965 companyfirmed the order of the Commissioner and dismissed the appellants revision petition.
It is against this order of the Board that the appellants have companye up to this Court in appeal.
Appeal by Special leave from the order dated October 15, 1965 of the Board of Revenue, U.P. in Revision No.
The view of the Commissioner is that such rights are rights other than proprietary rights.
The appellants filed a revision, under s. 46 2 of the Encumberedestates Act, before the Board of Revenue.
bhumidhari rights, companyld number have been mentioned on the date when the list was sent because such rights were obtained by the appellants long thereafter.
The liquidation proceedings pending before the Collector under the Encumbered Estates Act were reopened in the year 1955.
36,000/. and Rs.
25,000/ on loans secured over properties mentioned in Schedules A, B and C of the decree.
The basis.
9,000/ which was the decree debt for the payment of which the mother of the daughter had stood surety.
Bhumidhari rights accrued only after the abolition of the zamindari and, as such, they cannot be proceeded against for realisation of the decreed amounts.
The Assistant Collector, by his order dated February 21, 1961 upheld the objections of the appellantsdebtors and dismissed the application of the decree holders res pondents for sale of bhumidhari and other rights in the properties mentioned by them.
The appellants filed objections, briefly, to the following effect.
The said decree was amended on January 23, 1938.
Over and above these amounts, the respondents were given a decree for Rs.
The companytention of the appellants iS that they cannot be sold, whereas, according to the respondents, they can be sold.
The Board of Revenue has held that bhumidhari rights are number proprietary rights and so long as there is numberprohibition under the Abolition Act to proceed against them, the decree holder was entitled to attach and sell those rights.
P. Goyal and S.M. Hanif, for the appellants.
CIVIL APPELLATE JURISDICTIONCiVil Appeal No.
The Special Judge granted a decree in favour of respondents 1 to 3 for two sums of Rs.
The Board further held that the properties have been mentioned in the list sent by the Special Judge and the nature of the rights, viz.,
As required by s. 6 of the said Act, the Collector forwarded this application to the Special Judge, Saharanpur, appointed under s.3 of the said Act and the said application was registered as Suit No.23 of 1936.
The predecessors in interest of the appellants were Landlords owning immovable properties, including agricultural land, trees, groves and well, situate in the various villages in the District of Saharanpur.
The Judgment of the Court was.
The prOhibitiOn companytained in the Encumbered Estates Act is only regarding the sale of proprietary rights and bhumidhari fights number being proprietary rights companyld be proceeded with in execution.
They were also granted a decree for Rs.
on which the Assistant Collector declined to allow execution to proceed was that bhumidhari rights represent the proprietary rights which the zamindars, on the abolition of the estate, were allowed to retain, by the Abolition Act.
They were very heavily indebted, the debts being both secured and unsecured, payable by them to the creditors.
In substance, those rights were the original proprietary rights, though a new name of bhumidhari rights was given to them.
V. Gupte, G.D. Gupta and B. P. Maheshwari, for respondents Nos.
delivered by Vaidialingam, J. The question that arises for companysideration in this appeal, by special leave, is as to whether the bhumidhari rights and trees belonging to the appellants can be proceeded against and sold for realisation of the debts due to the respondents under the U.P. Encumbered Estates Act, 1934 Act XXV of 1934 as amended hereinafter referred to as the Encumbered Estates Act .
1016 of 1966.
After companyplying with the other formalities under the Encumbered Estates Act, the Special Judge, on December .23, 1936 passed a decree under s.14 7 .
On or about March 26, 1936 the appellants predecessors in interest filed an application under s. 4 of the Encumbered Estates Act to the Collector for determination of their debts.
The decree holders debts are secured debts and they are entitled only to three fourths of the Zamindari Abolition and Rehabilitation Grants and that they are number entitled to get anything more under the decree.
The respondents were among the secured creditors to whom large amounts were due.
On May 15, 1959 the respondents made an application to the ASsistant Collector of Saharanpur to whom the powers of the Collector, for the purposes of s. 24 of the Encumbered Estates Act had been delegated to recover the amounts decreed to them by the Special Judge by proceeding against the bhumidhari rights, and trees belonging to the appellants and to auction the same under s. 24 of the Encumbered Estates Act.
The list forwarded by the Special Judge does number refer to any of their rights number sought to be attached and therefore numberexecution can be levied against such properties.
2 E of 1964 Saharanpur.
3,500/ for an unsecured debt.
