- (1.) The following question has been referred to this Bench for answer: Where a decree for recovery of arrears of rent in respect of a period prior to the date of vesting under the UP ZA and LR Act has been passed in favour of a decree-holder, can the decree holder execute such decree for arrears of rent by sale of the sirdari rights of the judgment debtor after the coming into force of the UP ZA and LR Act
(2.) The material facts are these. The opposite parties obtained in 1950 a decree for arrears of rent amounting to more than Rs. 1,000 under Section 148 of the UP Tenancy Act against the Applicants, who were ex proprietary tenants. In February 1951, the opposite parties applied for execution of the decree by sale of the ex-proprietary rights of the Applicants as permitted by Section 251 of the UP Tenancy Act. While the execution application was pending the UP ZA and LR Act was enacted and the UP Tenancy Act was repealed. The former Act came into force on 1-7-1952. Under its provisions the Applicants became Sirdars in place of exproprietary tenants of the holding in dispute and thereupon they meet an objection in the executing court to the maintainability of the application for execution of the decree by sale of their Sirdari rights in the holding. The objection having been dismissed by the executing court and the Civil judge sitting on appeal, the Applicants filed this revision application. Our brother Beg, before whom the revision came up for disposal, considered that the question reproduced above is an important question likely to arise in many cases and referred it to a Bench. Though the question is in general words, we would answer it only with reference to the particular facts of this case, e.g The facts that the decree for arrears of rent was passed against an exproprietary tenant prior to the date of vesting under the ZA and LR Act and an application for execution of it by sale of the exproprietary right's in the holding was made before the date of vesting.
(3.) The relevant law in force under the UP Tenancy Act was as follows. Except as otherwise provided by the Act an arrear of rent was recoverable "by suit, or by notice" in accordance with the provisions of the Act; see Section 148. Section 147 prohibited the execution of a decree for arrears of rent by the arrest or detention of the tenant. Certain arrears of rent were recoverable as arrears of land revenue, vide Ss 153 and 154. No tenant could be ejected from his holding otherwise than in accordance with the provisions of the Act; see Section 157. A landholder was permitted by Section 163 to apply to the tahsildar for the issue of a notice to an exproprietary tenant for payment of arrears of rent due by him and in default for his ejectment from his holding; under Section 165 if he did not pay the arrears within the time fixed by the tahsildar, he was to be ordered to be ejected from the holding. If a decree for arrears of rent passed against an exproprietary tenant was not completely satisfied within one year, the landholder was given a right by Section 168 to apply to the court passing the decree for a notice to the tenant for payment of the decretal amount and for his ejectment in default. Section 158 laid down that when a tenant was ejected from his holding "in execution of a decree or order of ejectment for arrears of rent, all arrears of rent, whether decreed or not, due in its (sic) of such holding on the date of the delivery of possession shall be deemed to have been paid." Every decree or order for ejectment was to be enforced in accordance with the provisions of the Code of Criminal Procedure vide Section 181. Section 251 laid down that the interest of an exproprietary tenant could be sold in execution of a decree for arrears of the "sent of such holding" and unless the interest was purchased by the landholder thereof, the purchaser was to have the same interest, end was to be subject to the same liabilities (sic) respect of it as the tenant. Instead of selling the interest of a tenant the executing court had the option, under Section 252, of leasing the holding for a certain period to any person who paid into court the decretal amount. The rules framed by Government in exercise of the power conferred by Section 292 of the Act provided that when the interest of an exproprietary tenant was purchased in execution of a decree Under Section 251, the tenant should be ejected from the holding and the purchaser should be put into possession of it. The Applicants were liable to be ejected from their exproprietary holding in execution of the decree for arrears of its rent under Section 251. The question is whether this liability was affected by the enforcement of the UP ZA and LR Act of 1-7-1952. The interest of a Sirdar is not transferable except as expressly provided by the Act; see Section 153. Any transfer made by him in contravention of the provisions of the Act is rendered void by Section 166. The interest of a Sirdar is extinguished when he dies heirless or abandons or surrenders the holding or when the holding has been transferred, let out or used in contravention of the Act, or when the holding has been acquired, or when he is ejected in accordance with the provisions of the Ace or when he is deprived of possession and his right to recover possession becomes barred by limitation. No sirdar can be ejected from his holding except as provided in the Act; see Section 200. He is liable to be ejected from the holding at the instance of the gaon samaj if he makes a void transfer or uses the land in contravention of the Act or cultivates land which was recorded as or was, land for public utility. No sirdar can be ejected for arrears of rent or in execution of a decree for arrears of rent. Section 7, which occurs in Ch. II consisting of Sections 4 to 26, is as follows: (7) Nothing contained in this Chapter shall in any way affect the right of any person. (b) to recover any arrears of rent...which accrued before the date of vesting and the same shall, notwithstanding anything contained in this Act, be recoverable as heretofore by the person entitled thereto: Provided that no decree for an arrear of rent or order for ejectment in default of an arrear of rent shall be executed by ejectment of the judgment debtor from his holding.;