Bhumidari rights created under S. 18 of the U. P. Zamindari Abolition and Land Reforms Act, 1951, are not liable to be sold in execution of a decree for mortgage.

Judgment

WANCHOO, J. : This is an appeal on a certificate granted by the Allahabad High Court. The brief facts necessary for present purposes are these. The appellant s father Rana Umanath Bakshsingh was the Talukdar of Khajurgaon. On July 13, 1914, Rana Umanath Bakshsingh executed a simple mortgage in favour of the Allahabad Bank Limited (hereinafter called the respondent). The mortgage was for a sum of Rs. 6,00,000/- and the property mortgaged consisted of sixty-seven villages. In may, 1924, the respondent filed a suit for the recovery of balance of the unpaid mortgage money by the sale of the mortgaged property. In January, 1925, a preliminary decree for the recovery of rupees four lacs and odd was passed, which was made final in July, 1926, and directed the sale of the mortgaged property, namely, the proprietary rights of Rana Umanath Bakshsingh in the sixty-seven villages. The followed execution applications with which we are nor concerned. In 1934, the U. P. Agriculturists Relief Act was passed and thereupon an application was made by the judgment-debtor for the amendment of the decree under that Act. On October 19, 1936, the decree was amended under the provisions of that Act and thereafter the pending execution proceedings were dropped as instalments had been fixed. Eventually, the respondent applied for execution on May 25, 1940. Objection was taken to this application on the ground that it was barred by time; but this matter was decided against the judgment-debtor and thereafter the execution has been proceeding uptil now on this application.

2. On July 1, 1952, the U. P. Zamindari Abolition and Land Reforms Act, No. 1 of 1951 (hereinafter called the Act), came into force. As a consequence of this enactment, the zamindari rights of the judgment-debtor were abolished and it was no longer possible to sell these rights in the sixty-seven villages. Consequently, on September 20, 1952, the respondent made an application that as the zamindari rights could not be sold, only such rights of the judgment-debtor as remained in him after the coming into force of the Act might be sold, namely, the rights in trees and well in abadi and buildings situate in various villages under sale. It was also prayed that the judgment-debtor s proprietary rights in grove land and sir and khudkashat land had been continued under S. 18 of the Act and these constituted substituted security in place of proprietary rights mortgaged with the respondent and they should also be sold. Finally it was prayed that compensation money payable to the judgment-debtor on the acquisition of the judgment-debtor on the acquisition of the proprietary rights by the State might be treated as substituted security.

3. The appellant objected to these applications on various grounds. The execution court held that the buildings, trees and wells situated in the abadi were liable to be sold in execution of the decree. It further held that the respondent was entitled to compensation amount granted by the State to the appellant inieu of zamindari rights as substituted security. Finally, it held that the bhumidari rights acquired by the appellants under S. 18 of the Act could also be sold in execution of the decree.

4. The appellant then took the matter in appeal to the High Court, and the two points urged before the High Court were (i) that the bhumidari rights created by S. 18 (1) of the Act could not be sold in execution of the decree, and (ii) that the application dated September 20, 1952, was a fresh application for execution and as it was filed over 12 years after the date of the amended decree it was barred by time. The High Court repelled both these contentions, and held that execution could proceed against the bhumidari rights created in favour of the appellant under S. 18 of the Act and further that the application dated September 20, 1952, was within time as it was not a fresh application and the decree-holder was only seeking to execute the decree in respect of the pr