Madhav Nanaji Gore vs Badrinarayan Mohanlal

Shelat, J.—This application by a judgment-debtor raises a somewhat important question of construction, A decree was passed on December 31, 1953, whereunder the petitioner was directed to pay a sum of Rs. 22,684 to the decree-holders. Before the decree was passed and while the suit was still pending, the plaintiff applied for an order of attachment before judgment and that order was granted. Under that order certain lands belonging to the judgment-debtor were attached. The order for attachment before judgment was thereafter confirmed and continued after the passing of the decree. The decree-holders thereafter filed an application to recover the decretal amount by sale of the lands attached. The trial Court passed an order directing that the property attached should be sold and a proclamation for the sale thereof should be issued.

The petitioner filed an application in the Court of the learned Civil Judge, Senior Division, Ahmednagar, contending that the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, had been made applicable to the village of Rajuri where the lands under attachment were situate, that the Consolidation Officer had started certain proceedings under the said Act, that those proceedings were still pending and that, therefore, u/s 27 of that Act the execution proceedings could not be commenced or in any event such proceedings if commenced were liable to be stayed. The learned Civil Judge, who heard that application, came to the conclusion upon, construction of Section 27 that the provisions of that section were not applicable to execution proceedings in respect of a decree passed, which was a money decree, holding that the application of that section was restricted only to decrees of which the subject-matter was land.

Mr. Rane now contends that the construction placed by the learned Civil Judge is wrong and is not warranted by the plain language of Section 27. The construction suggested by Mr. Rane is that the words "no proceedings" in Clause (a) of Section 27 must be read in conjunction with the words "in respect of any land in respect of which a notification has been issued u/s 15". "What he contends is that the words "no proceedings" in Clause (a) apply to all the four categories of proceedings mentioned therein and, therefore, the words "in respect of any land" apply not merely to the fourth category contained therein but are common to all the four categories. The construction that he submits, therefore, is that u/s 27 no proceedings u/s 153 or 155 of the Bombay Land Revenue Code, 1879, or proceedings for execution of any award made under the Bombay Co-operative Societies Act, 1925, or for execution of any award made under the Bombay Agricultural Debtors Relief Act, 1947, or for execution of any decree passed by a civil Court, which proceedings are in respect of any land in respect of which a notification has been issued u/s 15 of this Act, can be commenced, and if so commenced, are liable to be stayed. If that construction is accepted, any proceedings taken out under any of the four categories mentioned in Section 27 and which are in respect of any land would come under the mischief of Section 27,

Mr. Rele on the other hand contends that the words "in respect of any land" in Section 27(a) have connection only with the fourth category mentioned in Clause (a) and further that the words "no proceedings" in that clause must be read disjunctively with each of those four categories. He suggests that upon such a reading of the section, the effect of Section 27 would be restricted merely to decrees for land and not to a money decree.

In my view, it is difficult to accept the construction that Mr. Rele seeks to put upon Section 27. In the first instance, it is somewhat clear to me that the words "no proceedings" in Clause (a) of Section 27 are common and relate to all the four categories mentioned there, and when so read the section would mean that proceedings under any of the matters relating to the four categories, including the execution of a decree passed by a civil Court, which are in respect of any land if that land is the subject-matter of a notification by the Consolidation Officer cannot be commenced, or if commenced, are liable to be stayed. In the second place, Clause (b) of Section 27, apart from other sections of the Act, seems to make the object of the Legislature plain beyond doubt, viz. that while consolidation proceedings are going on and a notification has been issued by a Consolidation Officer in respect of lands situate in a particular locality, no transfer of any land to which such a notification u/s 15 applies is permissible. It seems to me clear that when the Legislature provided that no proceedings "for execution of any decree passed by a Civil Court" in respect of any land can be commenced, it meant all proceedings which relate to or affect land and not necessarily decrees for land. The emphasis is on the word "any" in the words "for execution of any decree passed by a Civil Court" which again is an indication that a restricted interpretation as sought for by Mr. Rele is not warranted.

But then Mr. Rele points out Section 11 of the Act and argues therefrom that that section would show that what the Act aimed at was to prevent a transfer or an alienation of a mere fragment of land and that the object was not to stop transfers of lands in general. I am afraid that in reading Section 11 Mr. Rele makes the fallacy of misreading that section. What Section 11 provides is that where a decree is transferred to the Collector u/s 54 of the CPC for a partition of an undivided estate assessed to the payment of revenue to the Government in any local area for which standard areas have been fixed, or for the separate possession of a share of such an estate, no such partition or separation shall be made so as to create a fragment. Considering the scheme of the Act it is plain beyond words that the object of enacting Section 11 of this Act was to see that no difficulty was created in the way of a scheme of consolidation by allowing transfer or making a fragment. The object of the Act is to consolidate small holdings into standard areas and for that purpose a Consolidation Officer appointed under the Act has been given considerable powers to frame a scheme involving not only consolidation of holdings but also redistribution thereof under the circumstances provided therein. Likewise Section 14 prohibits the sale of a fragment in respect of which a notice has been given u/s 6(2) of the Act at any sale held under the orders of any Court except to the owner of a contiguous survey number or recognized sub-division of a survey number. It also provides that no land should be sold at a sale held under the orders of a Court so as to leave a fragment. Considering the scheme underlying the Act, it is clear to me that what is aimed at by Section 27 is that while a Consolidation Officer proceeds to prepare a scheme u/s 15, and while consolidation proceedings are pending, no proceedings under any one of the four categories mentioned in this section which affect land in respect of which a notification has been already issued should be allowed to be commenced. For these reasons I must hold that the construction placed upon Section 27 by the learned Civil Judge was one which is not warranted by the plain terms of Section 27.

There is, however, one difficulty in the way of the disposal of this application, and that is that instead of allowing the parties to lead evidence to show that within the area in question the Consolidation Officer was preparing a scheme u/s 15 of the Act and a notification was issued by such an officer in regard to the lands in question, the learned Judge proceeded to dispose of the application before him on the interpretation placed by him on this section.

The result, therefore, is that this matter will have to be remanded to the learned Civil Judge to dispose of the same on merits in the light of the construction that has been placed by me upon Section 27. So far as the order of costs is concerned, it is fair that there should be no order of costs as regards this application.