Chandra Prakash Singh and Another vs IVth Addl. District Judge and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the Petitioners. In spite of sufficient service on all the contesting Respondents as per office report dated 21.12.1999 they did not engage any Counsel.

This writ petition was dismissed in default on 23.8.2006 as after the elevation of the learned Counsel who filed the writ petition, Petitioners had not engaged any other Counsel. Thereafter, restoration application was filed, which was allowed on 24.2.2011 and on the same date arguments on merit were also heared and judgment was reserved.

Petitioners instituted O.S. No. 430 of 1967 against Bharath predecessor-in-interest of contesting Respondents No. 3 to 8 for specific performance of an agreement to sell executed by him in favour of the Petitioners. Suit was decreed on 1.10.1975. Thereafter, execution application in the form of Execution Case No. 14 of 1978 was filed. Contesting Respondents filed objection u/s 47, CPC contending therein that they (as well as their ancestor Bharath) are members of Scheduled Caste, hence by virtue of amendment in Section 157A of U.P.Z.A. & L.R. Act, by U.P. Act No. 34 of 1974 sale deed could not be executed by the Court even though the agreement for sale was executed prior to 1974 when there was no restriction on sale of agricultural land by a person belonging to scheduled caste. Ultimately, execution application was dismissed on 24.2.1983 by Executing Court/I Additional Munsif, Mirzapur on the ground that in the absence of permission of the Collector as required by Section 157A of U.P.Z.A. & L.R. Act, sale deed of an agricultural land of a Scheduled Caste member could not be executed in favour of non-Scheduled Caste member. Against the said order, Civil Revision No. 49 of 1983 was filed which was dismissed by IV A.D.J., Mirzapur on 18.1.1984, hence this writ petition. The lower Revisional Court discussed two authorities of this Court, one reported in Dal Chand v. III A.D.J. 1981 RD 29 and the other reported in Ram Saran v. A.D.J. 1981 RD 252.

The lower Revisional Court held that the Executing Court was not required to seek permission of the Collector, and "it was for the decree-holders themselves to have requested the Court to move for permission of the Collector for execution of the sale deed."

From the above it is quite clear that the allegation in Para-5 of the writ petition "that before Executing Court, an application was also filed on behalf of the Petitioners that the Court may move a formal application to the Collector with regard to the formality of obtaining the permission if any" is not correct.

Learned Counsel for the Petitioner has cited an authority of this Court reported in Harmal v. Special Judge/A.D.J. 1993 RD 51. In the authority of Harmal, the earlier authority of Ram Saran was followed, however, the authority of Dal Chand (supra) was not discussed.

The authority of Ram Saran related to auction sale and authority of Dal Chand related to execution of the sale deed by the Court in execution of decree for specific performance of agreement for sale by a person belonging to Scheduled Caste. However, in the authority of Dal Chand sale deed executed by the Court without permission of the Collector u/s 157A of U.P.Z.A. & L.R. Act was held to be valid on the ground that the original owner/executant of the agreement had afterwards sold the property to a person not belonging to Scheduled Caste hence this Court held that in fact in execution, sale deed was executed by the Executing Court on behalf of that subsequent purchaser who was not member of Scheduled Caste.

However, the Hon''ble Judge who decided the case of Dal Chand further held in Ganeshi Lal v. Bhagwan Swarup that question of permission could be seen only in execution. Somewhat similar view has been taken in Tilak Ram v. C.P. Singh 2009 (107) RD 7.

The permission could be obtained by the Court and the lower Revisional Court itself observed that such an application by the decree holder could be filed.

Accordingly, writ petition is allowed. Both the impugned orders are set aside. Matter is remanded to the Executing Court where Petitioner shall file formal application requesting the Executing Court to obtain permission of the Collector u/s 157A of U.P.Z.A. & L.R. Act. On such an application being filed the Trial Court shall send requisition for the requisite permission to the Collector who shall grant the permission in case the ingredients of Section 157A of U.P.Z.A. & L.R. Act are made out and thereafter sale deed shall be executed by the Executing Court.