Bapna, J. - (1.) THIS is an Ijlas-i-Khas appeal transferred to the High Court for disposal.
(2.) ONE Nathkaran obtained a decree under orders of the Musahib Ala of Marwar on the 22nd of September, 1901, for recovery of Rs. 22,387/8/-from one Rampratap, and in execution of that decree an Amin was appointed at first, and thereafter by an order of the Mahakma Khas, dated the 13th of September, 1904, the judgment-debtor's one-fourth share in village Burakia, Tehsil Jodhpur, was directed to be handed over to the decree-holder. The decree-holder was granted an Ijara for Rs. 500/-, out of which Rs. 113/10/- was to be deposited in Baqiyat uptil Samwat, 1966, and the rest was to be appropriated by him. This Ijara was subsequently raised to Rs. 700/-by an order of the Mahakma Khas, dated the 23rd of January, 1909. The decree holder and his descendants remained in possession of the property thereafter. On the 28th of April, 1944, Mst. Lakshmi Bai, widow and legal representative of Rampratap, made an application that the decree-holder had been in possession since 1901, and must have recovered far in excess of the sum decreed, and that in any case the possession of the decree-holder having exceeded 30 years, the decree should be considered to have been paid off, and that the possession of the property should be restored to the petitioner, and the decree-holder be directed to repay the excess amount realized. Amar Singh and Ram Singh, grand-sons and legal representatives of Nathkaran, opposed the petition on the ground that on the 18th of February, 1908, an order was passed by the Mahakma Khas that half of the Ijara money was to be credited towards interest, and the rest towards the principal, and that, in any case, a large amount of the decree was still outstanding, and the decree-holder was entitled to retain possession untill his decree had been paid off. The District Judge held on the 8th of October, 2957, that under the Notification of the Government, dated the 30th of March, 1932, a mortgage or Ijara for more than 24 years was invalid, and by the end of that period the debt secured under the mortgage lease was to be deemed to have been discharged, and that, accordingly, in this case, as the decree-holder had admittedly enjoyed possession for more than 24 years, the decree-holder was not entitled to retain possession any longer. The District Judge declared that the decree should be deemed to have been fully satisfied, and directed restoration of possession to the petitioner, Mst. Lakshmi Bai. Both the parties filed appeals, the judgment-debtor in so far as the claim for refund of excess amount realised by the decree-holder was not adjudicated upon, and the decree-holder on the ground that the Notification of 1932 was not applicable to the case. The learned Judges of the High Court of the Covenanting State of Jodhpur dismissed the decree-holder's appeal in limine, but accepted the judgment-debtor's appeal, and directed enquiry as to the amount realised by the decree-holder for a finding whether any excess amount had been realized by him. The decree-holder was granted special leave to appeal to Ijlas-i-Khas, and filed an appeal accordingly. It was contended by the learned counsel for the appellant, in the first place, that the Government Notification of 30th March, 1932, was not applicable to the transactions entered into before the date of the Notification. The said Notification was published in the Marwar Gazettee, of 9th April, 1932, and is as under: - "It has come to my notice that Ijaras or bhoglawas of land are sometimes executed with a stipulation whereby the lessee or mortgagee is empowered to retain in his possession the land leased or mortgaged beyond the period of 2\ years. Such stipulations defeat the provisions of Rule 6 of the Bhoglawa Rules of 1915, which reads as follows: - All alienation by way of mortgage for a period exceeding 24 years is prohibited. After the period of 24 years, the mortgaged land shall revert to the mortgagor or his heirs and the debt incurred shall be deemed to have been paid off." The Notification further goes on to say, "It is accordingly notified hereby for general information and guidance that a baraskati can on no account be extended beyond 24 years; and that document purporting to extend this period, on any ground whatsoever, will be impounded and sent to the Mahakma Khas for necessary action." This Notification was published under the signatures of the Vice-President, State Council, Jodhpur. In an Ijlas-i-Khas judgment, reported in 1939 Marwar Law Reports page 9 (Daulat-mal vs. Harisingh), it was doubted whether the Notification had the force of law as a statute, and it was observed that in any case it could not have any retrospective effect as affecting transaction which came into existence prior to its date. I may state at once that the Vice-President does not seem to have purported to lay down any new law, but only stated what its interpretation was according to his best judgment, and there is no question of the Notification being considered as a piece of fresh legislation The Vice-President notified to the people what he considered to be the proper interpretation of rule 6 of the Bhoglawa Rules, 1915. It must be left to the Courts to decide what the aforesaid rule 6 really means or whether it affects the transactions which may be in dispute in any particular case. The Bhoglawa Rules of 1915 have a history behind them. The earliest Notification on the subject is dated the 9th of September, 1944 (Marwar Gazette of October 17, 1914). In the preamble it is stated that there was always the law in Marwar whereby permanent alienation of agricultural land was prohibited, but owing to slackness of the officers of the State, the law could not be enforced properly, and, therefore, it was laid down (1) that the rehan bhoglawa, which was unlawful from before, will continue to be so. (2) to (7) relate to the procedure to be adopted in case of bhog-lawas then existing. (8) that no person will mortgage land for a period more than 20 years, and after the expiry of the said period the debt will be deemed to have been discharged, and the mortgagor will be entitled to restoration of land. (9) that these Bhoglawa Rules were not intended to affect urban property, houses and shops or the irrigation works constructed by Bapidars. The Rules were amended on 29th September, 1915, (Marwar Gazette of October 2, 1915), and the period for validity of the alienation by way of mortgage was enlarged from 20 to 24 years, besides other changes with which we are not concerned. On the 24th of February, 1917, (Marwar Gazette of May 5, 1917), a change in the procedure and remedy regarding existing bhoglawa mortgages was made, and it was decided that thereafter it was left to the Courts to decide the terms on which the existing bhoglawa mortgages were to be deemed to have been redeemed. In the aforesaid Ijlas-i-Khas case a distinction has been made between bhoglawa and baraskati, and it has been held that the Rules relate to bhoglawa only and are not applicable to baraskati, and that in respect of bhoglawa mortgages certain procedure was laid down for transactions then subsisting. It was contended by the learned counsel for the appellant that the Ijara granted to the appellant and the order to retain possession till his debt had been realised did not amount to a bhoglawa, and, therefore, the Rules were inapplicable. As to what is a bhoglawa mortgage is given in the preamble of the Rules dated the 9th of September, 1914. Bhoglawa has been explained as a kind of mortgage where the land is delivered to the mortgagee, and he enjoys the usufruct of the land in lieu of interest. He is not called upon to keep any accounts, and in spite of the expiry of any period, the principal debt continues to exist. The order of the Mahakma Khas by which the decree-holder was given possession of the judgment-debtor's property on Ijara till liquidation of the debt does not amount to Bhoglawa as explained in the Rules. But Rule 8 did prohibit all kinds of mortgages in which the mortgagee would remain in possession for more than 20 years (later on extended to 24 years), and it was directed that at the end of the said period, the debt would be deemed to have been repaid. In the present case, there was a debt, and according to the orders of the Mehkma Khas, the possession of the property of the judgment-debtor was handed over to the decree-holder to be enjoyed by him on lease till the debt had been repaid. The order of the Mehakma Khas cannot be deemed to be a mortgage. The Bhoglawa Rules hit only voluntary transactions by parties, and not to orders of the Court. Assuming that the order of the Mehakma Khas created a kind of mortgage, it was one which was in existence on the date of the enforcement of the Bhoglawa Rules, and the Bhoglawa Rules only made provisions for existing bhoglawa mortgages but not for other kinds of mortgages, and, therefore, the Rules did not touch mortgages which were then existing. While not agreeing with the decision of the District Judge, confirmed by the High Court of the Covenanting State of Jodhpur, that the transaction amounted to a bhoglawa or baraskati, the fact remains that it was only under an order of the Court that possession was handed over to the decree-holder for realization of his decree. The order dated 18th February, 1908, which directed the decree-holder to realize interest, was unauthorised as it did not form part of the original decree. Again, while the well-known modes of realization of decree include an appointment of receiver, who would account for the entire income of the property and maintain accounts, the mode resorted to in this case of handing over the judgment-debtor's property for a fixed rent irrespective of its income cannot be justified by any canons of law in a civilized country. Whatever may have been the procedure in the year, 1909, such an illegal course cannot be maintained now, and the lower Court was fully justified in directing restoration of possession to the judgment-debtor. The lower Court is already making an enquiry as to what payments have been made to the decree-holder, and this will be done on the footing that no interest is claimable by the decree-holder. It was contended by the learned counsel for the decree holder that certain matters were res judicata in this case. The decree in this case does not appear to be by a Civil Court, but is founded on a complaint of misappropriation in a criminal Court that the defendant misappropriated a certain number of gold mohars belonging to Nathkaran. The orders of the Maha-kma Khas referred to viz., of 18th February, 1908, and 23rd January, 1909, are all orders, more or less, on the executive side without reference to, or calling upon, the judgment-debtor to make an objection. Whatever may have been the state of law in Marwar in those days, it is clear that for orders like those, no question of res judicata can arise. It is the Musa-hib Ala who seemed to pass any and every kind of order without notice to the opposite party. The finding that the decree should be deemed to have been discharged is, in view of the above, also set aside, and it will depend upon the taking of accounts between the parties. The appeal is, therefore, dismissed as regards the prayer for restoration of possession to the decree-holder. The lower Court will carry on further investigation according to the directions given above. It may be pointed out that none of the parties have laid any objection as to the competency of the District Judge to decide the points involved in this case. No order as to costs. Dutt, J. - I agree. ;