Section 9 of the Punjab Debtors Protection Act (No. 11 of 1936) does not violate Article 14 of the Constitution of India, as it is a reasonable classification based on the rule of succession to immovable property by custom.

Mahajan, J.

1. This execution first appeal is by the decree-holder. It came up before me on the 14th of May, 1959, In view of the importance of the question involved, I referred it to a Division Bench. By order of my Lord the Chief Justice, the appeal has been placed before us for hearing.

2. The relevant facts out of which this appeal has arisen are as follows:-

Pandit Hans Raj obtained a decree for Rs. 26,000/- against Balwant Singh on the 29th of July, 1938. In execution of this decree the ancestral land belonging to the judgment-debtor, was attached along with the jagir. Before the land could be put to sale, Balwant Singh died in April, 1953, and" was succeeded by his son Dhanwant Singh. On the 26th of February, 1954, and the 3rd of July, 1954, Dhanwant Singh filed two objection petitions under Sections 47 and 60 of the Code of Civil Procedure and Section 9 of the Punjab Debtors Protection Act (No. 11 of 1936) hereinafter referred to as the Act. These objections were resisted by the decree-holder on a number of grounds. These objections prevailed with the executing Court only so far as the land in dispute is concerned. By his order dated the 4th of August, 1956, the executing Court held that the land in dispute could not be sold in execution of the decree in view of the provisions of Section 9 of the Act. So far as the jagir is concerned, the objections of the judgment-debtor were dismissed. The present appeal is confined to the question-whether the land to which Dhanwant Singh has succeeded on his fathers death and which admittedly, is ancestral can be sold in execution of the decree obtained against the father. It is no longer in dispute that the parties are governed by custom and that the land is ancestral.

3. Three contentions have been raised by the learned counsel for the decree-holder. These contentions are:-

1. That in view of section 4 of the Hindu Succession Act (No. 30 of 1956) Dhanwant Singh could not be said to be governed by custom. The rule of custom with regard to succession has been abrogated by section 4 of the Hindu Succession Act. Therefore the basic requirement of Section 9 of the Act, namely, that the rule of succession to immovable property should be custom arc not fulfilled and therefore its protection is no longer available to the respondent;

2. that section 9 of the Act is ultra vires-Article 14 of the Constitution of India inasmuch, as it creates discrimination inter se the debtors. Debtors who are not governed by customary law and who hold ancestral immovable property have no immunity qua that property for it can be sold in execution of the decree obtained against a previous holder, while in the case of debtors governed by that law, such property in the hands of a subsequent holder is not liable to be Proceeded against in execution of a decree obtained against the previous holder;

3. that, in any case, the property having been attached in the lifetime of the previous holder against whom the decree had been Properly obtained, it will only vest in the subsequent holder subject to the charge created by the attachment.

4. So far as the first contention is concerned, it is no doubt true that section 4 of the Hindu Succession Act, which is in these terms;-

"4. (1) Save as otherwise expressly provided in this Act, -- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which Provision is made in this. Act;

(b) * * * *

(2) * * * *

does away with the rule of custom so far as succession is concerned and therefore after the Hindu Succession Act came into force, no Hindu can be said to be governed by the rules of customary law and the succession to the property held by a Hindu must be regulated by the provisions of the Hindu Succession Act. Therefore, section 9 of the Act, which is in these terms:-

"9. When custom is the rule of decision in regard to s