Chhangani, J. - (1.) THIS is a first appeal under sec. 47 read with sec. 96 of the Code of Civil Procedure in an execution matter and has arisen in the following circumstances : The respondent Shankerlal son of Ambashanker had obtained a decree for Rs. 11,409/12/- against the appellant on 5th December, 1953. An application for execution of the decree was presented on 7th September, 1954 and during execution proceedings, some agricultural property was attached on 6th November, 1954. On 12th February, 1955 the decree was transferred to the Collector, Udaipur for the sale of the agricultural property under sec. 68 of the Code of Civil Procedure. On 9th March, 1956, the judgment-debtor filed objections in the civil court objecting to the sale of the property. It was contended that under sec. 37 of the Rajasthan Tenancy Act,1955 (Act No. 3 of 1955), the rights of a tenant in a holding shall not be liable to seizure, attachment or sale by process of any civil Court. The proceedings in the safe, however, continued and the property was actually sold by the Collector for Rs. 3,700/- but under the orders of the court, the confirmation of the sale was stayed pending the disposal of the judgment-debtor's objections. The objections were opposed by the decree-holder on the ground that sec. 37 of the Tenancy Act prohibits the sale of property only through, the civil court, but does not in any way affect the powers of the revenue court to sell the property. Waiver and estoppel were also pleaded by the decree-holder. The execution court dismissed the objections holding that the property in fact was sold under a process issued by a revenue court and the provisions of sec. 37 of the Tenancy Act, therefore, could not be attracted. The judgment-debtor has come up in appeal.
(2.) WE have heard Shri M. M. Vyas on behalf of the appellant, while Shri C. M. Lodha addressed us on behalf of the respondent. The appellant's learned counsel invited our attention to the various text books and dictionaries to show that the word "process" need not be confined narrowly to summonses and warrants but has to be interpreted widely to include many steps taken by courts in their proceedings. It was contended on this basis that the sale or the agricultural property by the Collector on transfer of the case by the civil court which has ordered the sale of the agricultural property should be treated as a sale under the process of a civil court and that the Collector should be treated merely as an agent of the civil court. Reliance was placed upon Roshanlal vs. Manohar Singh (1 ). This case, however, is not of much help to the appellant. In that case, the sale of the agricultural property through a civil court was objected to and the objection was allowed. The following observations in this connection are significant - "therefore, whatever may have been the position under the Mewar Kanoon Mal of 1947, the present position is that the Jagirdar's Khudkasht is his Khatedari tenancy and cannot be attached or sold through the civil court in view of sec. 37 of the Rajasthan Tenancy Act. " The question of sale of agricultural property through the agency of the Collector was not the subject matter of decision in that case. So far as the general argument is concerned, we no doubt agree that the word "process" may have variable meaning in different contexts, but we cannot hold that the sale of property by the Collector after transfer of the case by the civil court should be treated as a sale under a process of the civil court and that the Collector should be treated as merely an agent of the civil court. A consideration of the object of introducing provisions on this subject in the Civil Procedure Code and the scheme behind the provisions leads us to this conclusion. Regarding the object of these provisions, we may very usefully quote the observations of Field, J. in Huro Prasad vs. Kali Prasad (2) which go to show the circumstances under which it was considered proper to oust the jurisdiction of the civil courts in the matter of sale of agricultural property in some cases and to vest that power in the Collector. The observations are - "in different parts of India, the effect of sales in execution of decrees was to transfer landed estates from the old families to modern speculators. A strong opinion was entertained by certain member of the Government of India that these results of the administration of civil justice were impolitic and inexpedient and it was suggested that some procedure might be devised by which the Chief Executive Officer of the district would be enabled to liquidate debts of the encumbered landholders without the immediate sale of their estates, and so to preserve the old landed gentry of the country. The provisions of sec. 320 to 325-C were inserted in the Code of Civil Procedure in order to give effect to these suggestions. " Examining the scheme of these provisions, we find that sec. 68 empowers the State Government to declare by notification that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, shall be transferred to the Collector. Sec. 69 states that the provisions as set forth in the Third Schedule shall apply to all cases in which the execution of a decree has been transferred under sec. 68 of the Civil Procedure Code. In accordance with the provisions of the Third Schedule, the Collector is not bound to sell the property. He may postpone the sale in order to enable the judgment-debtor to raise the amount of the decree by letting the agricultural property in perpetuity or for a term on payment of a premium, or by mortgaging the whole or any part of the property ordered to be sold. In these matters, the Collector is the sole authority and is not subject to the control of the civil courts. Sec. 70 empowers the State Government to make rules inter alia, providing for appeals to the higher revenue authorities against the orders of the Collector or other subordinate revenue authorities. Sec. 71 says that in executing a decree transferred to the Collector under sec. 68, the Collector and his subordinates shall be deemed to be acting judicially. In this scheme of the legislation, it is difficult to treat the Collector as a mete agent of the civil court. He functions under the statute independently of the civil court, even though for certain purposes the civil court which passed the decree may continue to have seisin of the decree and the execution case. The Collector in fact is a special transferee court having the sole authority to determine finally various matters falling within his jurisdiction, and the sale by the Collector is under a revenue process and not under a civil process. In this background, we are further of the opinion that sec. 37 of the Rajasthan Tenancy Act is only an extension of this principle. Instead of leaving it to the discretion of the Government to direct by notification for a particular area the transfer of execution cases requiring sale of agricultural properties, it has now been provided that the tenancy rights shall not be liable to seizure, attachment and sale in process of a civil court. Incidentally, it came to our notice that although when the Rajasthan Tenancy Act came into force, sec. 68 to 72 of the Civil Procedure Code and the Third Schedule were in force, but subsequently, they have been repealed by the Code of Civil Procedure Amendment Act No. 66 of 1956. The repeal of the provisions regarding the transfer of the civil decrees for execution to the Collector read with the provisions of sec. 37 of the Tenancy Act have of course resulted in a situation where the tenancy rights cannot at all be seized, attached or sold in connection with execution of civil decrees and have thus placed serious handicaps on the rights of the decree-holders. This, however, is not a matter for us to consider. It is for the legislature to consider the continuance of the provisions disabling the holders of civil decrees from securing any relief by seizure, attachment and sale of agricultural properties, or to restore the prior state of affairs under which the decree-holders were not altogether denied any relief, but were required to get their decrees transferred to the Collectors for execution, who could realise the decree by processes other than sale. Be that as it may, sec. 16 of the Amendment Act does not affect the pending cases which have to be decided in accordance with the old law. In our opinion, the decision of the execution court holding that the sale by the Collector was not in contravention of the provisions of sec. 37 of the Rajasthan Tenancy Act is quite correct and requires no interference. We may also take note that at one stage, Shri M. M. Vyas, counsel for the appellant had suggested that no notification under sec. 68 of the Civil Procedure Code was ever issued under which the decree could be transferred to the Collector, Udaipur. Mr. Chandmal has however brought to our notice that the former Mewar Government had issued notification No. 3765 dated 15th June, 1941 which was published as a supplementary to the Mewar Government Gazette dated 23rd June, 1941 under which the decree could be transferred. This notification shall be deemed to be in force by virtue of sec. 157 of the Civil Procedure Code. On the whole there is no substance in the appeal and it is hereby dismissed but without costs. ;