B TULSIPAT RAM Vs. JAGAT NARAIN MATHUR
LAWS(ALL)-1949-4-3
HIGH COURT OF ALLAHABAD
Decided on April 29,1949

B.TULSIPAT RAM Appellant
VERSUS
JAGAT NARAIN MATHUR Respondents


Referred Judgements :-

HARI SARAN V. HAR KISHAN [REFERRED TO]
AMIR UDDIN VS. PANCHAITI AKHARA BARA UDASI NANAK SHAHI [REFERRED TO]


JUDGEMENT

- (1.)This is a revision application in an execution of decree case. The decree-holder-applicant Babu Tulsipat Ram is superior proprietor of village Puraini. He obtained on 14-6-1941 a decree from the Court of the Sub-Divisional Officer Malihabad for arrears of under proprietary rent against the opposite parties, Shri Jagat Narain Mathur and Shri Tirbhawan Nath, for Rs. 1075 and future interest and costs. The decree was attempted to be realised in execution by appointment of a receiver, an order in which behalf was passed by the learned Sub Divisional Officer on 1-4-1942 in spite of the objections of the judgment-debtors that they had applied under the Encumbered Estates Act and that the decree could not be executed in view of Section 7 of that Act. The judgment-debtors succeeded in having the order set aside by the learned District Judge in appeal on 21-9-1942, and the execution application was, therefore, consigned to records.
(2.)In the Encumbered Estates Act proceedings a preliminary award was prepared on 7-12-1942 and it was made final on 10-1-1943. Thereafter the decree-holder presented another application on the execution side for appointment of a receiver, but though the Sub-Divisional Officer passed an order in his favour on 6-12-1943 the District Judge in appeal reversed it on 17-7-1941. The present revision application is against that order. It came up for hearing before our brother Kidwai, J., on 6-9-1948 but was referred to a Division Bench in view of the fact that on the point raised for decision there was an apparent difference of opinion between the Judges who constituted the Division Bench which decided the case of Hari Saran v. Har Kishan, 1941 Oudh W.N. 103, Bennett, J. being of the opinion that there could be no appointment of a receiver on account of the prohibition contained in Section 7, Sub-section (3), Encumbered Estates Act and Yorke J. being doubtful on the point.
(3.)The relevant provisions of Section 7 are contained in Sub-sections (2) and (3) which are as follows:
(2) After the passing of the said order and until the application is dismissed by the Special Judge under Sub-section (3) of Section 8 or proceedings under this Act are quashed under Section 20 or until the Collector has liquidated the debt in full under Section 23 or Section 24 or granted a mortgage under Section 25 or passed orders under Section 27 or Section 28, no decree obtained on the basis of any private debt incurred by the landlord after the passing of the order under Section 6 shall be executed against any of his property, other than proprietary rights in land, which has been mentioned in the notice under Section 11 and the landlord shall not be competent without the sanction of the Collector to make an exchange or gift of, or to sell, mortgage or lease, those proprietary rights or any portion of that property.

(3) After passing of the order under Section 6 and until the Collector has declared in accordance with Section 44 that the landlord has ceased to be subject to the disabilities of this sub-section or until the passing of the order by the Special Judge, referred to in Sub-section (2) of Section 44, no decree obtained on the basis of any private debt incurred after the passing of the order under Section 6 shall be executed against any of the landlord's proprietary rights in land mentioned in the notice published under Section 11 and the landlord shall not be competent, without the sanction of the Collector, to make any exchange or gift of, or to sell, mortgage, or lease those proprietary rights, or any portion of them.



Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.