Harilal Vanmalidas vs Uka Ata

Baxi, J.—This second appeal arises out of the order of the District Judge, Ghilwad, confirming the order of the Civil Judge, Jr. Dn. Mahuva

dismissing the Appellant''s application for execution of a money decree. The Appellant applied for execution of the decree by attachment and sale

of the Respondent''s field and vadi. The Respondent did not appear to oppose the proceedings either in the original Court or in the District Court.

He has not appeared in this Court also. Both the Courts below dismissed the application on the ground that the decree could not be executed by

virtue of a special rule of the former Bhavnagar State under which lands of agriculturists were exempt from liability to attachment and sale in

execution of the decrees of Civil Courts. The Appellant has preferred this second appeal against the learned District Judge''s order.

In order to appreciate the dispute, it will be convenient to notice the law which was in force in the Bhavnagar State before the formation of the

State of Saurashtra. The lands of the cultivators were made alienable by His Highness the Maharaja Saheb of Bhavnagar by his Jawak No. 1

dated 18-04-31. Rules governing the alienation of land by cultivators were published under Hazur Jawak No. 21 dated 25-07-33. Section 7 of

the rules of 25-07-33 enacted that the conferment of the right of the kabjahuk (right of possession and alienation) over the land and houses upon

the Darbar''s cultivators should not be deemed to render such lands liable to be taken in attachment in execution of decrees of Civil Courts. The

agricultural lands were thus exempt from the liability to be taken in execution of decrees of Civil Court.

Subject to this modification, the law with regard to execution of a decree by attachment and sale of property was similar to the law in Section 60 of

Code of Civil Procedure. After the formation of the State of Saurashtra, the CPC was applied by Ordinance No. XXV of 1948. This Ordinance

was further amended by Ordinance No. XXXIX of 1948 whereby the Bombay Land Revenue Code (V of 1937) was applied to the United State

of Saurashtra. The combined effect of these two ordinances is that an occupancy is heritable and alienable and is also liable to be taken in

execution of a decree by attachment and sale. Section 9(3) of Ordinance XXV is in the following terms:

Laws in force in the Covenanting States, Estates or Talukas, similar to those adapted by this Ordinance, shall stand repealed from the date from

which the corresponding Act comes into force.

Therefore on the application of the CPC and the Land Revenue Code by the above-mentioned Ordinances the corresponding law in force in the

Bhavnagar State stood repealed. From position a (sic) by the Civil Judges below but they hold that the only law which should be deemed to have

been repealed thereby is the CPC and the Land Revenue Code of the Bhavnagar State. But the Hazur Jawak No. 21 dated 25-07-1933

remained unaffected because the repeal of the Bhavnagar CPC and the Land Revenue Code could not be deemed to affect this special rule. That

rule continued to have the force of law by virtue of the provisions until it was expressly repealed. There was nothing according to them in Section

9(3) of the Ordinance No. XXV of 1948 which would justify the construction that on the application of the CPC and the Bombay Land Revenue

Code to Saurashtra any other law except the Bhavnagar CPC and the Land Revenue Code should be deemed to have been repealed. I do not

agree with this view.

Under Section 9(3) every law enforced in the Bhavnagar State corresponding or similar to a law applied by the Ordinance stands repealed from

the date from which such law comes into force. Now the law in the Bhavnagar State relating to the execution of money decrees against agricultural

lands was contained in the CPC of the Bhavnagar State and the Land Revenue Code and Jawak No. 1 of 18-04-31 as modified by Hazur Jawak

No. 21 dated 25-07-33 and on coming into force in Saurashtra of the CPC of 1908 and the Bombay Land Revenue Code which contains the law

on this subject, the entire corresponding law in the Bhavnagar State including the rule contained in the Hazur Jawak No. 21 dated 25-07-33 was

repealed. I therefore hold that the Respondent''s land became liable to attachment and sale u/s 60 of the CPC as applied by Ordinance No. XXV

of 1949 (sic).

The appeal is allowed and the order of the learned District Judge is set aside. The papers are returned with the direction that the execution should

proceed according to law. In view of the peculiar point involved in this appeal and as the Respondent has not contested the application at any

stage of the proceedings, I make no orders as to costs.