SUNDER Vs. SHEO DAT SINGH

JUDGEMENT

(1.) This is a judgment-debtors appeal arising out of an execution proceeding. The property sought to be attached and sold is situated in Bundelkhand. It is an admitted fact that at the time when the mortgage decree was obtained the property was not saleable under the Bundelkhand Land Alienation Act of 1903. When an application for execution was filed the judgment-debtors, on 11th February 1927, objected that the property was not saleable. The Court upon that objection passed the following order: The property is not saleable. In view of the ruling reported in Bishnath Singh V/s. Basdeo Singh A.I.R. 1925 Lah. 171, the decree for sale shall be modified. A receiver be appointed to realise the money out of the mortgaged property, subject to order about marshalling.

(2.) Obviously the Court held that the relief asked for by the decree-holder for the sale of the property could not be granted inasmuch as the property was not saleable, but substituted therefor a new relief for the appointment of a receiver, as such appointment was permitted under the ruling of this Court. It cannot be doubted that the decree-holder's application for the sale of the property under the mortgage decree was disallowed and he could have preferred an appeal from that order. The order passed by an execution Court, allowing an objection is a decree within the meaning of Section 2, Civil P.C. Thereafter in 1926 the Bundelkhahd Land Alienation Act was amended and a proviso was added to the old Section 16, under which under certain special circumstances the property can be sold to persons specified therein where a mortgagee has obtained or obtains a decree for sale. Accordingly the decree-holder applied afresh for the execution of the decree by sale of the mortgaged property. The Courts below allowed execution holding that the Amending Act 7 of 1929 had a retrospective effect. An appeal preferred to this Court has been dismissed by a learned single Judge.

(3.) The point that was argued before the learned single Judge was whether the previous order of the execution Court dated 5 September 1927 holding that the property was not saleable operated as res judicata. No other aspect of the question appears to have been argued before him. The learned Judge has rightly held that the previous order cannot operate as res judicata inasmuch as that order was tantamount to a decision that the property was not saleable under the law as it then stood, whereas the question that now arises is whether the property is saleable or not under the law as it stands now. There is however another aspect of the question, which has not been considered. The law was modified while the execution proceeding was pending, and after the judgment-debtors objection had been allowed by the Court and the decree-holder's application for sale had been refused. The question is whether an Amending Act should affect an execution proceeding in such a way as to nullify the previous order passed inter partes.