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Judgment
S.H. Sheth
This appeal arises out of execution proceedings. The decree-bolder obtained money decree against the judgment-debtor sometime in 1952. In execution of that decree he filed execution petition No. 75/64 and attached the judgment-debtor''s land in question. It was inter alia contended by the judgment-debtor that the land under attachment was carpentry service inam land and that it was protected from attachment and sale u/s 5 of Madras Act III of 1895. The executing court negatived that contention and ordered the execution to proceed further. Judgment-debtor appealed against that order to the District Court at Guntur. The learned District Judge confirmed the finding and the order made by the executing court and dismissed the appeal.
It is that appellate order which is challenged by the judgment-debtor in this C.M.S.A.
It has been argued on behalf of the judgment-debtor by Mr. A. Suryanarayana Murthy that the land under attachment was admittedly carpentry service inam land and that therefore it is immune to attachment and sale u/s 5 of Madras Act III of 1895. Section 3 of the Madras Hereditary Village Officers Act 1895 (Act III of 1895) was inter alia applicable to the hereditary office of village carpenter. It is not in dispute that the judgment-debtor held the hereditary office of a village carpenter. Section 5 of the said Act provided inter alia that the emoluments of village offices whether such offices be or be not hereditary, were not liable to be transferred or encumbered in any manner whatsoever and that it was not lawful for any Court to attach or sell such emoluments or any portion thereof Section 3 made it clear beyond any doubt that the office of the village carpenter was the hereditary village office. When section 5 is read in light of section 3 of the said Act it cannot be gainsaid that the emoluments attached to the office of the village carpenter could not be attached and sold even in execution of a decree. Section 4 defined emoluments so as to mean and include inter alia lands.
Now, Madras Act III of 1895 was repealed by Andhra Pradesh (Andhra Area) Proprietary Estates Village Service and the Andhra Pradesh (Andhra Area) Hereditary Village Offices Law (Repeal) Act, 1969. Sub-section (1) of section 2 of the said Act (Andhra Prades Act XVI of 1969) has in terms repealed the Andhra Pradesh (Andhra Area) Hereditary Village Officers Act. 1895 as it was re-named after the formation of State of Andhra Pradesh Therefore the question which I am required to consider relates to the effect of repeal. Having repealed Act III of 1895 and abolished the office of village carpenter, was there any prerogative which continued to attach to the carpentry service inam land which the village carpenter held. The effect of repeal has been laid down by sub-sections (2) (3) and (4) of section 2 Sub-section (2) and (3) indisputably do not apply to the present case Reliance has been placed by Mr. Suryanarayana Murthy on Sub-section (4) of section 2 which provides that every suit, appeal, application, revision of other proceeding not being a proceeding or remedy failing under sub-section (3), instituted, made or taken under the Acts repealed by sub-section (1) and pending on the commencement of this Act shall abate.
The execution petition which was filed by the decree holder was not filed under Madras Act III of 1895. Therefore, it did not abate under sub-section (4) of section 2 of Act XVI of 1969. However the objections which were filed by the judgment-debtor would, in my opinion, be governed by the expression, ''other proceedings'' used in sub-section (4) of section 2. Indisputably the objections which the judgment-debtor raised were raised u/s 5 read with section 3 of Madras Act III of 1895. Therefore by virtue of the provisions of sub-section (4) of section (sic) of Act XVI of 1969 they abated Therefore the Judgment Debtor was not competent to raise the objection which he raised after Andhra Pradesh Act XVI of 1969 came into force.
However it has been argued by Mr. Suryanarayana Murthy that the present case would be governed by section 8 of the Andhra Pradesh General Clauses Act, 1891. He has placed reliance upon clause (d) of section 8 of the Act, which provided that where any act to which this chapter applies repeals any other enactment, then the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.
The first question which has been raised by Mr. A. Hanumantha Rao, who appears on behalf of the decree-holder is whether in view of this special provision made in sub-section (4) of section 2 of Andhra Pradesh Act XVI of 1969 section 8of the Andhra Pradesh General Clauses Act would govern the present case. In my opinion since the special provision dealing with the effect of repeal has been made in section 2 of Andhra Pradesh Act XVI of 1969 the provisions of section 8 of the Andhra Pradesh General Clauses Act 1891 would not apply to the present case.
Assuming however, that I am in error in taking this view, on merits also section 8 in my opinion, does not help the judgment-debtor. What clause (d) of section 8 Says "is any right, privilege, obligation or liability acquired, accrued or incurred under an enactment repealed. What was the right, privilege, obligation or liability acquired, accrued or incurred under Madras Act III of 1895? It has been argued that the privilege which the judgment debtor claimed was attached to the land in question and that since the land continued to be the carpentry service inam land even after 1969 it was not liable to attachment and sale. I am unable to uphold this argument because of the provisions contained in Andhra Inams (Abolition and Conversion into Ryotwari) Act, 1956. Clause (c) of section 2 of the said Act (Act XXXVIII of 1955) defines "inam land" as any land in respect of which the grant in inam has been made, confirmed or recognised by the Government but does not include an inam constituting an estate under the Madras Estates Land Act, 1908. Section 4 inter alia provides that in the case of an inam land in a Ryotwari or Zamindari village, the person or institution holding such land as inamdar on the date of the commencement of this Act shall be entitled to a ryotwari patta in respect thereof.
That the land under attachment was Inam land and was situate in village, described in sub-section (1) of section 4 is not in dispute before me. Therefore the consequence which the Andhra Pradesh Act XXXVIII of 1956 produced was to abolish the inam land and to convert it into ryotwari land. Once the land under attachment ceased to be carpentry service inam land and assumed the character of ryotwari land held under a ryotwari patta the privilege which was attached to it automatically disappeared and it became liable to attachment.
In this connection reference has been made by Mr. Survanaravana Murthy to a division Bench Decision of this court in [(sic) Punnaiah & Others Vs. Sri Laxminarasimhaswamy Varu 1963 (2) ALT 365=1963 (2) An. W.R. 214. It appears from the report that the question which arose in that case was what would happen to the conversion of the service inam land into ryotwari land if the grantee of the ryotwari patta, after abolition of inam, did not render service which he was required to render? The answer which this court gave to that question was that in such a situation the legislature would step in to fill in the gap. From the arguments advanced it has been argued by Mr. Suryanarayana Murthy that even after the abolition of the carpentry service inam the village carpenter is under an obligation to render service as a village carpenter Assuming that it is so, it does not make any difference so far as the attachment of the land is concerned because once it ceases to be service inam land and assumes the character of a ryotwari land it becomes liable to the attachment and sale.
The next argument which has been raised is based upon Rule 41 of the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969. In order to appreciate the application of these, rules, it is necessary to turn to sub-section (2) of section 2 of Andhra Pradesh Act XVI of 1969. While repealing Madras Act III of 1895 it provided that every holder of a village office appointed under the repealed Act before the commencement of Andhra Pradesh Act XVI of 1969, shall notwithstanding the repeal of said Act continues to hold such office subject to such rules as may be made under the proviso to Article 309 of the Constitution. This sub-section gives an idea that even though carpentry service inam has been abolished the village carpenter continues to function as a village artisan and holds that office. Indeed he holds that office after the enactment of Andhra Pradesh Act XVI of 1969 subject to the rules which the Governor of Andhra Pradesh may make under article 309 of the constitution in that behalf. Now rule 41 of the said rules provides that emoluments of village officers and servants shall not be liable to be transferred or encumbered in any manner whatsoever and that it shall not be lawful for any court to attach such emoluments or any portion thereof Since by virtue of sub-section (2) of section 2 of Andhra Pradesh Act XVI of 1969 the judgment-debtor continues to hold village office, his emoluments, are not liable to attachment and sale even by a court. However the concept of emoluments introduced by these rules is different from the concept of emoluments which Madras Act III of 1895 introduced. Where as under Madras Act III of 1895 emoluments included land, under clause (d) of rule 2 of these rules emoluments mean salary or any other remuneration payable in cash in respect of any village office governed by the rules. It is therefore clear that the land under attachment which was converted into ryotwari land after the abolition of the inam did not continue to be the emolument of the judgment debtor. It was therefore liable to attachment and sale by the court.
The execution petition was filed in 1964 when Madras Act III of 1895 was in force. At that time the land under attachment of course could not have been attached because of the provisions of section 5 of Madras Act III of 1895 However the attachment was levied by the executing court on 70-12-1974 when Madras Act III of 1895 stood repealed. In my opinion after the repeal of Madras Act III of 1895 the land in question was liable to attachment as it did not enjoy the prerogative which section 5 of Act III of 1895 conferred upon it. Therefore the order which the executing court made was perfectly in order and valid. The learned District Judge was therefore justified in confirming that order though he did so by a very short and cursary order. These are all the contentions which Mr. Suryanarayana Murthy has raised on behalf of the judgment-debtor. All of them failed and ate rejected. The appeal therefore fails and is dismissed with no costs.