Palok Basu, J - (1.) THE question involved in this writ petition is whether the bar on transfer of land imposed by section 157-A of the UP ZA and LR Act would enable the judgment debtor to resist delivery of possession of the disputed land in execution proceedings arising out of a decree for specific performance of contract of repurchase.
(2.) HARMAL, the petitioner, is the purchaser of the disputed land from the original tenure-holder Nihala for a sum of Rs 8,800/- with a right of repurchase as convened through Registered sale deed dated 18-1-1968. Nihala transferred the right of repurchase to respondent no. 3 Rashid on 21-7-73 who filed suit no. 31 of 1973 for specific performance of contract of resale which was decreed by the trial court on 8-2-1974, confirmed even In Second Appeal by this Court. Execution Case No. 12 of 1990 commenced on the application by Rashid moved on 21-7-1990 Draft sale deed was prepared which was duly executed and registered in the office of sub Registrar at the behest of the Executing Court. Application moved by HARMAL purporting to be "objection" as envisaged by Order 21 Rule 43 CPC was dismissed. Rashid made an application for delivery of possession through court. Now, an application was filed by HARMAL for recalling of order directing registration of sale on several grounds, one of which was that because of the bar on transfers by a scheduled-caste land-holder created by section 157-A, UP ZA and LR Act, the Court could not have executed and got registered the sale deed. The executing court rejected the said application of HARMAL and allowed the application for delivery of possession by his order dated 21-10-1991 and permitted him to take steps within twenty days. Appeal by HARMAL against this order dated 21-10-1991 having been dismissed on 16-7-1992 he has filed this writ petition under Article 226 of Constitution of India The courts below have taken the view that section 157-A of the UP ZA and LR Act would not be attracted to a sale by court and, therefore, have ordered proceedings for delivery of possession to Rashid. They have relied upon the decision of a learned single Judge in Ram Saran v. 1st A. D. J. Rampur, 1981 ALJ 794. Sri Siddhsshwari Prasad, senior Advocate, has relied upon the Division Bench decision of our court Rai Indra Narayan v. Mohd. Ismail, AIR 1939 Alld. 678, and argued that the courts below have wrongly followed the decision in the case of Ram Saran (supra) as it was a case of "auction-sale" in execution of a money decree and the view of the learned single Judge was contrary to the Division Bench decision in Rai Indra Narayan's case (supra). He also cited AIR 1929 Alld. 800, AIR 1938 Alld. 432 and AIR 1966 Mysore 299 for the proposition that by merely passing of decree of specific performance, no title is transferred and if the transfer is prohibited by law, the execution of such a decree can be resisted by the judgment-debtor. In this connection the further argument was that though section 157-A was added and made applicable on 3 6-1981, it should be held to operate retrospectively and, therefore, the decree passed in the instant case was a nullity being in the teeth of the said prohibition, hence not executable. Sri Chandra Shekhar Sharma , learned advocate for Rashid has disputed the correctness of each and every argument and has further relied upon some decisions. He has canvassed that the orders of they courts below are legally sound and, therefore this writ petition be dismissed. It was strange that the learned counsel for the petitioner placed reliance upon an authority which has ceased to be a good law long ago. In Lala Nawal Kishore v. Municipal Board, Agra, AIR 1943 Alld 115. a Full Bench of our court has specifically overruled the decision in Rai Indra Narayan (supra) and held that the expression "transfer for consideration" would include auction purchase in court sale.
(3.) IT must be held that the expression "transfer for consideration" in section 100 of the Transfer of Property Act has been used in a wider sense and would include a transfer by act of parties as also by or in execution of a decree and, therefore, should be interpreted to include an auction-purchase in court sale. Therefore section 100, Transfer of Property Act is not excluded from the operation of saving clause (d) of Section 2 of Transfer of Property Act. This interpretation stands fully fortified by the Supreme Court decision in Laxmi Devi v. Mukund, AIR 1965 SC 834. Thus the view of the learned single Judge in Ram Saran v. 1st A D. J. Rampur, 1981 ALJ 794, relied upon by the courts below, it Is submitted with respect, lays down the correct law. IT thus follows that the bar imposed by Section 157-A of UP ZA and LR Act cannot be invoked by the judgment-debtor by saying that sale by the court in execution of the decree of specific performance of contract is not volutary sale by act of parties. The other argument advanced is that section 157-A of the UP ZA and LR Act has retrospective effect and it should be held that the decree is not executable and since possession of the disputed property has admittedly not been delivered, it should be held that the executing court should have recalled his order directing registration of the sale-deed in the office of the sub-Registrar. In this connection the learned counsel for the petitioner placed reliance on the opinion as expressed in Jagdish Swarup's famous, treatise "Judicial Interpretation".;