1972 (2) TMI 94 - SC - Indian Laws

Summary

Issues Involved:
1. Inclusion of properties in the decree under appeal.
2. Impact of occupancy certificates issued under the Saurashtra Land Reforms Act, 1951.
3. Execution of the decree concerning specific items of property.

Issue-wise Detailed Analysis:

1. Inclusion of Properties in the Decree Under Appeal:
The primary contention was whether the decree under appeal included the properties concerned in this appeal. The judgment clarifies that the decree did include certain properties while excluding others. The Civil Judge, Senior Division, Surendranagar, initially directed the creditors to restore possession of houses and fields mortgaged to them, except those with occupancy rights granted to tenants. The appellate court upheld this decision for some properties but reversed it for others, particularly the two houses at Kathada, finding the claim for redemption barred by limitation.

2. Impact of Occupancy Certificates Issued Under the Saurashtra Land Reforms Act, 1951:
The second contention revolved around whether the decree-holder could seek possession of lands for which occupancy certificates had been issued under the Land Reforms Act. The Board initially and upon remand, as well as the appellate court, concluded that properties with occupancy certificates were excluded from the decree. The High Court's judgment contained factual inaccuracies regarding the Board's directions about these properties, leading to a misinterpretation of the decree's scope.

3. Execution of the Decree Concerning Specific Items of Property:
The judgment meticulously analyzed each item of property listed in the Darkhast to determine whether they were included in the decree under execution:
- Item 1 ("Boriu") and Item 2 ("Boriu"): The Board and appellate court directed creditors to restore possession to the debtors. The appeal concerning these fields was dismissed.
- Item 7 ("Vankad"): The High Court and lower courts concluded this field was included in the decree, but the appeal abated due to the death of the appellant without substitution of legal representatives.
- Item 8 ("Dosima's Katki"): The original and fresh awards directed restoration of this field to the debtors, and the appeal was dismissed.
- Item 9 ("Vado"): No arguments were advanced, and the appeal was dismissed.
- Item 10 (Two houses at Kathada): The appellate court found the claim barred by limitation, reversing the Board's order for possession restoration. This decision became final as no appeal was filed against it.
- Items 3, 4, 5, and 6: The Board and appellate court excluded these fields from the decree due to occupancy certificates granted to tenants. The appeal against the fresh award did not challenge this exclusion. The execution petition concerning these items was dismissed.

Conclusion:
The executing court and appellate court failed to properly construe the decree by not considering the context and relevant documents, leading to a misinterpretation. The High Court also made factual errors, further complicating the matter. Ultimately, the appeal was partly allowed, dismissing the execution petition for items 3, 4, 5, 6, and 10, while upholding the decree for other properties. Each party bore its own costs due to partial success and failure.