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TMI Blog1961 (4) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... n villages. Then followed execution applications with which we are not concerned. In 1934, the U.P. Agriculturists' Relief Act was passed and thereupon an application was made by the judgment-debtor for the amendment of the decree under that Act. On October 19, 1936, the decree was amended under the provisions of that Act and thereafter the pending execution proceedings were dropped as installments had been fixed. Eventually, the respondent applied for execution on May 25, 1940. Objection was taken to this application on the ground that it was barred by time; but this matter was decided against the judgment-debtor and thereafter the execution has been proceeding until now on this application. 2. On July 1, 1952, the U.P. Zamindari Abolition and Land Reforms Act, 1950 (1 of 1951), hereinafter called the Act, came into force. As a consequence of this enactment, the zamindari rights of the judgment-debtor were abolished and it was no longer possible to sell these rights in the sixty-seven villages. Consequently, on September 29, 1952, the respondent made an application that as the zamindari rights could not be sold, only such rights of the judgment debtor as remained in him aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgaged consisted of the property forming part of the Talukdari of Khajurgaon detailed at the foot of the mortgage, namely, the sixty-seven villages. Thus the mortgage consisted of the proprietary interests only of the mortgagor in the sixty-seven villages, and as it was a simple mortgage, possession of no part of the property was given to the mortgagee. It is therefore contended by Mr. Aggarwala on behalf of the appellant that as the proprietary right in the sixty-seven villages vested in the State under the Act, the respondent who was only entitled to get the proprietary rights sold under the mortgage can now fall back only on compensation payable to the appellant under the Act, and reliance in particular is placed on s. 6(h) of the Act in this connection. On the other hand, the contention on behalf of the respondent is that bhumidari rights arising under s. 18 of the Act are liable to be sold as they represented the proprietary rights which were mortgaged and in any case they can be sold as substituted security in place of the property mortgaged. 6. We have therefore to look into the scheme of the Act in order to decide between the rival contentions. It is not in dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision otherwise in the Act. The only provisions otherwise on which the respondent relies are Sections 9 and 18 of the Act. So far as s. 9 is concerned, it is certainly a provision otherwise and it provides as follows :- All wells or trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed. 9. This provision clearly creates an exception to the property which vests in the State on the making of a notification under s. 4. The exception is in favour of all wells and trees in abadi and all buildings and it is significant to note that these things will continue to belong to the intermediary, through the further provision shows that the site of the wells, and buildings with the area appurtenant thereto would vest in the Government and would be deemed to be settled with the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or comparison to s. 23 of the Rajasthan Land Reforms and Resumption of Jagirs Act, No. VI of 1952 (hereinafter called the Rajasthan Act) which provides that notwithstanding anything contained in the last preceding section (i.e. s. 22, which refers to consequences of resumption), all khudkashat lands of a Jagirdar etc. shall continue to belong to or be held by such jagirdar or other person . If the intention of the Act was not to vest sir and khudkashat land and grove land in the State we would have found an exception similar to that found in the Rajasthan Act. Section 9 itself shows in what manner the legislature was making an exception when it did not intend that a particular property should vest in the State. If the intention were that sir and khudkashat land and grove land should not vest in the State, s. 18 would have been worded in the same way as s. 9. Further the way in which s. 18 is worded, (namely that khudkashat and sir land and an intermediary's grove shall be deemed to be settled with the intermediary and he would have bhumidari rights therein) shows that these three kinds of property vested in the State under s. 6(a)(1) and were then re-settled with the intermedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assets, the income from sir and khudkashat land and grove land has been excluded on the ground that bhumidari rights have been conferred therein under s. 18 of the Act. That is however for the purposes of calculating what should be paid to the intermediary as compensation and in that connection it was necessary to take into account the fact that the legislature was creating a new right in the intermediary with respect to certain lands and therefore it was not necessary to give money as compensation. That would not however make any difference in our view as to the legal effect of the notification under s. 4 and under the notification sir and khudkashat land and grove land would vest in the State and would not be an exception to the consequences of vesting in s. 6 and therefore the proprietary right in sir and khudkashat land and grove land which were mortgaged would be extinguished and the bhumidari right which is created by s. 18 would be a new right altogether and would not therefore be considered to be included under the mortgage in this case. 13. This brings us to a consideration of s. 6(h) of the Act. That lays down that no claim or liability enforceable or incurred befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent therefore cannot enforce his rights under the mortgage by sale of the bhumidari rights created in favour of the appellant under s. 18 so far as his sir and khudkashat land and grove land are concerned; it can only follow the compensation money as provided in s. 6(h). The argument that bhumidari rights can be followed as substituted security must therefore equally fail. 14. Our attention in this connection was drawn to s. 8(2) of the U.P. Zamindars Debt Reduction Act, No. XV of 1953. That Act provides for scaling down of debts of zamindars whose estates have been acquired under the Act. It also provides that the debts due shall be realisable from the compensation and rehabilitation grant, and in particular s. 8(2) provides that notwithstanding anything in any law the reduced amount found in the case of a mortgagor or judgment-debtor as the case may be, under section 3 or 4 as respects mortgaged estates shall not be legally recoverable otherwise than out of the compensation and rehabilitation grant payable to such mortgagor or judgment-debtor in respect of such estates . We have not been able to understand how the provisions of the U.P. Zamindars Debt Reduction Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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