P L D 1971 Peshawar 82 (PLP)

Provided that no appearance by or on behalf of the Deputy Commissioner shall be deemed necessary for the disposal of the application.

7. The Judicial Precedents quoted below lay that where a decree in contravention of the mandatory provisions of section 16 has been passed by the sale of the land belonging to a member of an agricultural tribe, the executing Court shall not sell the same property. In Asa Singh v. Buta and others (1911 P R 21), it has been held that "When a sale of land belonging to a member of an agricultural tribe is made under order of a civil Court in execution of a decree, the provisions of section 16 of the Punjab Alienation of Land Act are contravened and section 21‑A of the Act applies". In Thakar Das v. Roshan Din (A I R 1933 Lah. 397), it has been laid "The Punjab Alienation of Land Act is an extremely beneficent measure and was intended primarily to protect land belonging to members of the agricultural tribes who form the backbone of the population and contribute mainly to the revenues of the Province of the Punjab. It was in order to prevent their lands from passing into the hands of non- agriculturists that this Act was passed and it is the duty of the Courts to administer it in a generous and liberal spirit and to see its useful and beneficial provisions are not whittled down by any legal quibbles." In Ahmad Din v. Ghulam Rasool and others (A I R 1934 Lah. 609(1)), it was held:- "An executing Court is not ordinarily entitled to go behind the decree, but in view of the mandatory provisions of section 16 an executing Court can refuse to sell the land belonging to a member of a notified agricultural tribe, in execution of a mortgage decree for sale in favour of a non- agriculturist " In this authority the dictum laid in A I R 1933 Lah. 397 was followed. In Chhaju Ram v. Muzaffar Ahmad (A I R 1936 Lah. 845), it was held:- "Though in the majority of cases the decree of the Court must be executed as it stands, yet, when that decree would have the effect of nullifying an Act of the Legislature the Court must hold its hand. Under section 16 therefore land belonging to a member of an agricultural tribe could not be sold in execution even though a decree had been obtained by the mortgagee for the sale of such land." A I R 1933 Lah. 397 was approved. In Sahib Dayal and another v. Jamal‑ud‑Din and others (A I R 1937 Lah. 194), it was also ruled:- "The prohibition contained in section 16 is absolute. The land of a member of an agricultural tribe therefore cannot be sold in execution of a decree even when the decree itself has directed its sale and the executing Court is competent to go behind such decree." A I R 1936 Lah. 845 was relied on. In Lala Khazanchi Shah v. Haji Niaz Ali (A I R 1940 Lah. 126), it was laid:- "The prohibition in section 16 of the Act is absolute and land belonging to a member of a notified tribe cannot be sold even if a decree on the footing of a mortgage has been previously obtained against him." A I R 1933 Lah. 397, A I R 1936 Lah. 845 and A 1 R 1937 Lah. 194 were relied on. Again in L. Ramji Dass v. Asghar Khan and others (A I R 1943 Pesh. 52), it was held:- "The words 'in execution of any decree or order' indicate that the question whether the land belonging to any particular judgment‑debtor should be sold or not would arise at the execution stage and not necessarily during the suit which ,precedes it." At page 53, column 2, it is observed:- "Paragraph 1 of section 16, Land Alienation Act, is as follows:- No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any civil or revenue Court, whether made before or after the commencement of this Act. The words 'in execution' `of any decree or order' are significant and indicate that the question whether the land belonging to any particular judgment‑debtor should be sold or not would arise at the execution stage and not necessarily during the suit which precedes it. The rulings quoted by counsel for the appellant have been practically overruled by the Division Bench ruling of the Lahore High Court reported in A I R 1933 Lah. 397 followed by a Single Judge in A I R 1934 Lah.

609. These authorities were quoted by counsel for the respondent. We therefore find that the argument advanced by counsel for the appellant that the executing Court has no jurisdiction to consider the question of the sale of land has no substance in it."

8. There exists a contrary view of law, in that section 16 has no (sic) application when the question of liability of certain property to sale arises in the course of a suit and not in execu tion proceedings. This exposition of law is laid in the judicial decisions referred to below:- In Surjan Chaudhry v. Tegh Bahadur Singh and others (A I R 1931 Lah. 545), it is held:- "The objection that the land being of an agriculturist cannot be sold in execution cannot be raised before the executing Court where the decree itself directs the sale of the land." In Ganesh Das and others v. Ganga Singh (A I R 1932 Lah. 529), it was held:‑ "Where a decree orders the sale of a certain property for the realization of a debt, the objection that the judgment-debtor is an agriculturist and that the property cannot be sold In execution proceedings by virtue of the provision of the Act, cannot be raised for the first time In execution proceedings." In Chittar Mal v. Alt. Ram Devi and others (A I R 1935 Lah. 164(1)), it is ruled. "Section 60 (C. P. C.) is a prohibition against forcible attachment or sale, there is nothing in this enactment to prevent an agriculturist voluntarily selling or otherwise alienating his house. Where an agriculturist voluntarily agrees to mortgage his house section 60 does not apply." In Budhu Ram and others v. Ali Shah (A I R 1935 Lah. 443), it is held: "Where a decree ordered sale of certain property for the realization of a debt, the objection that the judgment‑debtor is an agriculturist and that the property cannot be sold in execu tion proceedings by virtue of the Alienation of Land Act, cannot be raised for the first time in execution proceedings. A Court executing a decree cannot go behind that decree in execution proceedings. If there is a contravention of section 16, Alienation of Land Act, by the decree, the proper course is to attack the decree itself and not a subsidiary order passed in execution". A similar question also came up for discussion before the Full Bench in Punjab National Bank Ltd., Ferozepur City v. Firm Ram Karan Ramji Lal and others (A I R 1940 Lah. 370), where it was ruled:- "If the decree to be executed has already determined the liability of the property to sale, the executing Court cannot l6 question the validity of the decree or refuse to carry it out. Section 16 was not intended to override this principle and give power to an executing Court to ignore and nullify the effect of the decree passed by a Court of law. Section 16 was meant to apply only to those cases where the liability of the land to be sold is not already determined by the decree itself, and the executing Court has to decide what property should be sold to satisfy the decree. In other words, the section is analogous to section 60, Civil P. C., which lays down that certain properties shall not be liable to be attached and sold in execution." This proposition of law has been discussed by Bhide, J. at pages 375 and 376 as under:- "Moreover, after considering the wording of section 16 and the other relevant provisions of the Act, it seems to me doubtful if section 16 was really meant to apply at all when the question of liability of certain property to sale arises in the course of a suit and not in execution proceedings. Section 16 lays down that no land belonging to a member of an agricultural tribe shall be sold in execution of a decree or order of a Court. This would show that the section applies only when the question arises in execution whether such land should or should not be sold. Now, such a question can, T think, properly arise in execution only when the Court executing the decree has a choice in the matter and has to determine what property should be sold in execution. For, if the decree to be executed has already determined the liability of the property to sale, the executing Court cannot, according to the well‑established principles governing execution of a decree question the validity of the decree or refuse to carry it out. See 53 Cal. 166 and 9 Rang. 480, etc. This is the usual rule and the question therefore is whether section 16 was intended to override this principle and give power to an executing Court to ignore and nullify the effect of a decree passed by a Court of law. If the intention of the Legislature were that no decree should be passed at all in any case directing the sale of land belonging to a member of an agricultural tribe, a provision to that effect could easily have been made. But it is significant that the Legislature has made no such provision. It appears therefore that the Legislature did not intend that a decree for sale of land should not be passed if it were not otherwise contrary to law. It seems reasonable in the circumstance to infer that section 16 was meant to apply only to those cases where the liability of the land to be sold is not already determined by the decree itself, and the executing Court has to decide (as in the case of simple money decrees) what property should be sold to satisfy the decree. In other words, the section seems to be analogous to section 60, Civil P. C., which lays down that certain properties shall not be liable to be attached and sold in execution. It was held by the Bombay High Court in 4 Bom. 25, that the house of an agriculturist, if specifically mortgaged, can be sold under section 60(c), Civil P. C., and a similar view was taken by a Full Bench of the Allahbad High Court in 34 All. 25, by a Division Bench of this Court in A I R 1935 Lah.

164. I am aware of the fact that a wider interpretation has been placed on section 16 in some rulings of this Court and it‑has been held that even when the sale of land has been directed by a decree in a mortgage suit the executing Court must refuge to sell the land if it belongs to a member of a notified agri cultural tribe. See e.g., A I R 1933 Lah. 397 and 18 Lah-48. But with the greatest respect, I must say that certain aspects of the question do not appear to have been considered in these rulings. It seems to have been assumed that the object of the Punjab Alienation of land Act would be defeated unless section 16 was construed in the manner in, which it was construed in these rulings. But there seems, to be ample provision in the Act itself to ensure that no decree is passed by a Court which will be contrary to provisions of the Act and also if by any chance such a decree is passed to get it rectified by a Court of appeal or revision. To take for instance, the case of mortgages with which we are concerned in the present case) we find that section 6 of the Act provides that a mortgage by, a member of an agricultural tribe in favour of a person who is not a member of such a tribe must be for a limited period in one of the forms given in the auction. If the mortgage is effected in such a form no question of sale of land in execution of a decree on the footing of such a mortgage can possibly arise. If however a mortgage is effected in a different form in a case falling under section 6 section 9 gives power to a Deputy Commissioner to revise it and if such a mortgage Court in the course of a suit the Court has also to refer the matter to the Deputy Commissioner, if the provisions of section 9 are complied with no decree will therefore be passed for the sale of land belonging to a member of an agricultural tribe, where the mortgage is in favour of a person who is not a member of such a tribe. If the mortgage is in favour of a member of the same tribe, the Legislature has not placed any restriction on the form of the mortgage and presumably the Legislature intended that the ordinary law should take its course in such cases; A I R 1929 All.

421. Lastly, if by any chance section 9 is overlooked by a Court and a decree is passed for the sale of land on the footing of a mortgage which contravenes the Provisions of section 6, section 21‑A gives power to the Deputy Commissioner to refer it to a Court of appeal or revision in order to get it rectified and brought into conformity with the provisions of the Act. In view of these provisions, it seems to me scarcely likely that the Legislature could have intended by section 16 that an executing Court should ignore a decree passed by a Court of law and refuse to carry it out. If it appears to an executing Court that a decree sought to be executed offends against any of the provisions of the Punjab Alienation of Land Act, it can easily stay the proceedings and give opportunity to the party concerned to get it corrected by bringing it to the notice of the Deputy Commissioner for necessary action under section 21‑A of the Act. If this course is adopted the objects of the Act will be served and the anomaly of an executing Court questioning the validity of a decree will be avoided." In this case, it may be noted, the learned Judges dissented from the law laid in A I R 1933 Lah. 379 and A I R 1936 Lah. 245, quoted above. It may also be pointed out that this Full Bench authority of 1940 was, it appears, not brought to the notice of the Division Bench in the case A I R 1943 Pesh. 52, quoted above, and as such this authority has not been referred to therein.

9. Applying the law laid in the A I R 1940 Lah. 370 to the facts of the present case, I am of the view that section 16 has no application when the question of liability of certain. property to sale arises m the course of a suit and not in execution proceedings. Such a question is meant to apply to those cases where the liability of the land to be sold is not already deter mined by the decree itself and the executing Court has to decide what property should be sold to satisfy the decree. In the present case the preliminary decree for Rs. 44,625 was awarded on 16‑2‑57 to the plaintiff against the judgment‑debtors‑appellants and others as charge on the mortgaged land belonging to the defendant. A final decree was also passed on 13‑12‑57 for an amount of Rs. 44,625 with costs in favour of the plaintiff, and it was ordered that the decretal amount and costs were recover able by auction of mortgaged land of the defendants‑judgment -debtors. The executing Court has thus committed no illegality in selling the mortgaged land of the judgment‑debtors‑appellants in the execution of the decree.

10. In conclusion, these appeals fail and are hereby dismissed. A legal question was involved, the parties are to bear their own costs. K. B. A. Appeals dismissed.