Judgment

RAGHUBAR DAYAL, J. : This appeal, on certificate granted by the High Court at Nagpur, is directed against its order dismissing the appellant s appeal against the dismissal of his objection, under S. 47 of the Code. of Civil procedure, by the III Civil Judge, Class I, Nagpur.

2. The respondent purchased at auction sale, held by the Revenue officer for recovery of arrears of land revenue, eight anna share of Ganpatrao in mouza Vadoda, Tehsil and District Nagpur, in the Central Provinces, and obtained formal possession of that share on September 23, 1938. Ganpatrao relinquished his share in khudkasht lands and they were recorded as the occupancy lands of his wife and sons. They surrendered those fields to lambardar Narain, who leased those fields in occupancy right to the appellant in 1940. The respondent filed a suit for possession of certain fields including the fields in suit viz., fields khasra nos. 147 and 154, and based his claim on his proprietary right to recover possession and not on the loss of possession on account of the appellant s dispossessing him. The suit was decreed and the decree was upheld by the Nagpur High Court by its order dated April 20, 1951,* it being held that the respondent was entitled to the fields in suit which were originally khudkasht fields as part and parcel of the eight anna share of Mahal No. 2 purchased by the respondent.

* Reported in AIR 1925 Nag 398.

3. It so happened that between the closing of the arguments in the appeal before the High Court, some time before March 31, 1951, and the delivery of judgment on April 20, 1951, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (M. P. Act No. I of 1951), hereinafter called the Act, came into force. This fact does not appear to have been brought to the notice of the High Court as it did not consider the effect of the Act on the appeal before it.

4. The respondent-decree holder filed execution application for the recovery of costs and delivery of possession on July 23, 1951. The appellant paid up the costs, but, on August 31, 1951, filed an objection to the application for delivery of possession on the ground that the respondent-decree holder had no right to dispossess the appellant judgment debtor, as the respondent had lost his proprietary rights to the fields and the appellant had acquired rights to occupy them subsequent to the confirmation of the decree for possession by the High Court. It was stated that the malguzari proprietary rights of the respondent-decree holder, except his rights over home-farm fields, ceased to exist on March 31, 1951, by virtue of S. 3 of the Act and vested in the State thereafter. Home-farm fields were those fields which were recorded as khudkasht or sir fields in the Jamabandhi of 1948-49. The fields in suit were not so recorded and were recorded as occupancy fields of the appellant.

5. It was further contended that the State had, after the date of vesting, collected rent from the appellant recognizing the land in suit to be the tenancy land of the appellant.

6. On September 24, 1951, the appellant filed in application stating further facts in support of his objection. He stated that the respondent neither claimed, in the expropriation proceedings before the Compensation Officer, Nagpur, the fields in suit as his khudkasht lands, nor raised any such claim in proceedings for fixation of assessment on his home-farm and that the decreeholder had not been declared malik makbuza of the land in suit. He further stated that the respondent had included the rent of the fields in suit in the area of the village for the purposes of claiming compensation and thereby got more compensation on that account and that the fields in suit had been declared malik makbuza of the appellant on July 22, 1952, under S. 41 of the Act.

7. The respondent contended before the Executing Court that the appellant could not raise such objections in the Executing Court and should have raised them in