1. The following F. A. Os. arise out of the same suit and a common question of law is involved for decisions :- (1)F. A. O. No, 9 of 1962 Khani Sher v. Secy., Post War Services Reconstruction Fund, N.-W. F. P.
2. (2)F. A. O. No, 10 of 1962 Abdul Aziz v. Secy., Post War Services Reconstruction Fund, N.-W. F. P.
3. (3)F. A. O. No, 11 of 1962 Janat Gul v. Secy., Post War Services Reconstruction Fund, N.-W. F. P. and (4)F. A. O. No, 12 of 1962 Zabite Khan v. Secy., Post War Services Reconstruction Fund, N.-W. F. P.
4. These appeals are, therefore, disposed of together by this judgment.
2. Twenty-two Ex-Military Service Men of village Karak, District Kohat, had formed a syndicate for the business of salt and timber in the year 1949. These Ex-Servicemen, including Abdul Aziz, Janat Gul and Zabita Khan as principal debtors (appellants) and 8 other persons as sureties including Khani Sher appellant, executed a registered mortgage-deed dated 26-6-1949. without possession in favour of Secretary, Post War services Reconstruction Fund, N.-W. F. P. plaintiff-respondent had secured a loan of Rs, 50,000, on the terms and conditions mentioned in the mortgage deed. The land and house property of the principal-debtors and sureties was pledged with the plaintiff, creating a charge over the property for the payment of the debt. A supervision fee of Re. 1 % was also stipulated to be payable to the plaintiff. The dispute arose between the plaintiff and the principal-debtors over the default in payment of the principal debt. Before the dispute was referred to Court, the principal debtors had paid the plaintiff only Rs, 7,500. On 30-10-56 the Secretary Post War Services Reconstruction Fund, N.-W. F. P. Peshawar, instituted the present suit against Pensioner Captain Firoze Khan and 21 others principal debtors including Abdul Aziz appellant, defendant No, 10, Janat Gul appellant, defendant No, 5, and Zabita Khan appellant-defendant No, 21 and 8' others sureties of principal debtors including Khani Sher appellant defendant No, 2i, for the recovery of Rs, 42,500 as balance of the principal debt and Rs, 2,125 as supervision fee total Rs, 44,625 on the basis of the registered mortgage-deed, dated 28-6-49. It was prayed in the suit that the decree for Rs, 44,625 be passed in favour of the plaintiff against the mortgaged property, mentioned in the plaint, and also against the principal debtors defendants and surety defendants jointly and severally, with costs. The suit was tried by the Senior Civil Judge, Kohat, who by his judgment dated 16-2-1957, passed a preliminary decree in the following terms :- "A preliminary decree for the recovery of Rs, 44,625 with costs of the suit is passed in favour of the plaintiff against the defendants. It shall also be a charge on the mortgaged property. The defendants are required to pay the decretal amount to the plaintiff within four months from today failing. which the plaintiff will be entitled to apply for the grant of a final decree for recovering the decretal amount by the sale or otherwise transfer of the mortgaged property. The defendants are individually and collectively held responsible for the payment of the decretal amount to the plaintiff. The plaintiff can recover the decretal amount from the original debtors who are alive or their sureties who are alive by enforcing his decree against their person as well as property while against the dead debtors or dead sureties, the decree will be enforceable to the extent of the property. (The mortgaged property as well as other property left by them which is in the hands of their successors-in-interest)."
3. On 18-3-57 the plaintiff decree-holder applied to the Court of Senior Sub-Judge, Peshawar, that the preliminary decree passed on 16-2-57 be made final against the mortgaged property.
5. Ultimately on 13-12-57 the Court passed a final decree for the recovery of Rs, 44,625 with costs against the defendants and ordered that the decretal amount with costs be realised by auction of the mortgaged property.
4. On 25-11-59 the decree-holder applied for the execution of the final decree by attachment and sale of the mortgaged property of the judgment-debtors.
6. Khani Sher submitted an application on 17-10-60 to the executing Court that the auction of his land fixed for 21-10-60 be withheld on the ground that he being an agriculturist by profession his land is immune from attachment and sale in execution of the decree.
7. Abdul Aziz also applied to the Court on 28-10-60 under section 60, C. P. C. for the release of his land mentioned in the application, on the ground that he being a Zamindar, was not liable to attachment and sale in execution of the decree. It appears that his land measuring 24 kanals 11 marlas had already been auctioned on 27-10-60.
8. Janat Gui made a similar application on 23-11-60, under section 60, C. P. C. for the release of his land mentioned in the application, which had been attached and sold in auction on the ground of its immunity, in law, from attachment and sale, he being a Zamindar by profession.
9. It appears from the report of the Senior Civil Judge, Kohat dated 4-6-62, in connection with the stay application before this Court that the disputed lands of Khani Sher had been sold in auction on 21- 10-60, of Abdul Aziz on 27-10-60 of Janat Gui on 26-10-60, and of Zabita Khan on 31-10-60, and that the auction sales had also been confirmed.
10. The executing Court entered into inquiry on the objection petitions of the respective applicants. The objection application of Khani Sher was rejected on 5-4-62 and the money deposited was ordered to be paid to the decree-holder.
11. The objection application of Abdul Aziz was also rejected on 5-4-62 and the money deposited was ordered to be paid to the decree-holder.
4. Similarly the objection application of Janat Gul was rejected on 5-4-62, wherein also the money deposited was ordered to be paid to the decree-holder.
12. The objection application of Zabita Khan was rejected on 13-4-62, on the main ground that the objector did not cite any law to show that the land attached and put to auction was immune from such attachment.
13. In all the four F. A. Os. the objectors judgment-debtors have challenged the respective orders of the executing Court.
5. The learned counsel for the appellants, Mian Muhammad Yunas Shah, contended that the appellants being proved to be cultivators, agriculturists, and also belonging to agricultural tribe of the District, are fully entitled to the benefit and protection of section 16 of the Punjab Alienation of Land Act, 1900 (hereinafter to be called as the Act), and that the executing Court by attachment and sale in execution of the decree of the respective lands of the appellants in satisfaction of the money decrees acted outside the scope of its jurisdiction.
6. The Punjab Alienation of Land Act, XIII of 1900, was modified in its application to the North-West Frontier Province by Regulation I of 1904. Subsequently the Punjab Act, XIII of 1900 was amended by Punjab Act, I of 19)7, and this latter Act was modified and extended to the North-West Frontier Province by Chief Commissioner's Notification No, 3405 dated 10th June 1908 (The Land Acts, North- West Frontier Province, page 207, foot-note, published in 1915). Later on by the Punjab Alienation of Land (The North-West Frontier Province Amendment) Act,. 1948, section 4 was substituted as under :- (a)All Muslims ordinarily residing, or holding land, in the North-West Frontier Province shall be deemed to be members of an agricultural tribe and constituting one group for the purposes of this Act.
14. (b).............................................
15. Subsection (1) of section 16 of the Act forbids execution sale of land in the following words :- "No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any civil. or Revenue Court, whether made before or after the commencement of this Act."
16. Section 21-A of the Act is also reproduced for sake of expediency as under :- "21-A. Civil Court to send copy of decree or order to Deputy Commissioner.--(1) Notwithstanding anything contained in the Code of Civil Procedure or in any other Act for the time being, in force, every civil Court which passes a decree or order involving (1) the permanent alienation of his land by a member of an agricultural tribe or (2) the mortgage by a member of an agricultural tribe of his land when the mortgagee is not a member of the same tribe or of a tribe in the same group, shall send to the Deputy Commissioner, a copy of such decree or order.
17. (2)Action to be taken by Deputy Commissioner when decree or order passed contrary to Act.
18. When it appears to the Deputy Commissioner that any civil Court has either before or after the date when this section comes into operation, passed a decree or order contrary to any of the provisions of this Act, the Deputy Commissioner may apply for the revision of such decree or order to the Court, if any, to which an appeal would lie from such decree or order or in which an appeal could have been instituted at the time when the decree or order was passed or in any other case to the High Court. And when the Court finds that such decree or order is contrary to any of the provisions of this Act it shall alter it so as to make it consistent with this Act. Such application shall be made within two months of the date upon which the Deputy Commissioner is informed of such decree or order.
19. (3)When any such appellate Court passes an order, rejecting such application the Deputy Commissioner may, within two months after the date upon which he is informed of such order apply to the High Court for revision thereof.
20. (4)Every civil Court which passes an order or any application made under this section shall forthwith send a copy thereof to the Deputy Commissioner.
21. (5)No stamp shall be required, upon such applications, and the provisions of the Code of Civil Procedure as regards appeals shall apply so far as may be to the procedure of the Court on receipt of such application: Provided that no appearance by or on behalf of the Deputy Commissioner shall be deemed necessary for the disposal of the application.
7. The Judicial Precedents quoted below lay that where a decree in contravention of the mandatory provisions of section 16 has been passed by the sale of the land belonging to a member of an agricultural tribe, the executing Court shall not sell the same property.
22. In Asa Singh v. Buta and others , it has been held that "When a sale of land belonging to a member of an agricultural tribe is made under order of a civil Court in execution of a decree, the provisions of section 16 of the Punjab Alienation of Land Act are contravened and section 21-A of the Act applies".
23. In Thakar Das v. Roshan Din , it has been laid : "The Punjab Alienation of Land Act is an extremely beneficient measure and was intended primarily to protect land belonging to members of the agricultural tribes who form the backbone of the population and contribute mainly to the revenues of the Province of the Punjab. It was in order to prevent their lands from passing into the hands of non-agriculturists that this Act was passed and it is the duty of the Courts to administer it in a generous and liberal spirit and to see its useful and beneficial provisions are not whittled down by any legal quibbles."
24. In Ahmad Din v. Ghulam Rasul and others , it was held :- "An executing Court is not ordinarily entitled to go behind the decree, but in view of the mandatory provisions of section 16 an executing Court can refuse to sell the land belonging to a member of a notified agricultural tribe, in execution of a mortgage decree for sale in favour of a non-agriculturist "
25. In this authority the dictum laid in AIR 1933 Lah. 397 was followed.
26. In Chhaju Ram v. Muzaffar Ahmad , it was held :- "Though in the majority of cases the decree of the Court must be executed as it stands, yet, when that decree would have the effect of nullifying an Act of the Legislature the Court must hold its hand. Under section 16 therefore land belonging to a member of an agricultural tribe could not be sold in execution even though a decree had been obtained by the mortgagee for the sale of such land."
27. AIR 1933 Lah. 397 was approved.
28. In Sahib Dayal and another v. Jamal-ud-Din and others , it was also ruled :- "The prohibition contained in section 16 is absolute. The land of a member of an agricultural tribe therefore cannot be sold in execution of a decree even when the decree itself has directed its sale and the executing Court is competent to go behind such decree."
29. AIR 1936 Lah. 845 was relied on.
30. In Lala Khazanchi Shah v. Haji Niaz Ali , it was laid :- "The prohibition in section 16 of the Act is absolute and land belonging to a member of a notified tribe cannot be sold even if a decree on the footing of a mortgage has been previously obtained against him."
31. AIR 1933 Lah. 397, AIR 1936 Lah. 845 and AIR 1937 Lah. 194 were relied on.
32. Again in L. Ramji Dass v. Asghar Khan and others , it was held :- "The words 'in execution of any decree or order' indicate that the question whether the land belonging to any particular judgment-debtor should be sold or not would arise at the execution stage and not necessarily during the suit which precedes it."
33. At page 53, column 2, it is observed :- "Paragraph 1 of section 16, Land Alienation Act, is as follows :- No land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any civil or revenue Court, whether made before or after the commencement of this Act.
34. The words 'in execution' of any decree or order' are significant and indicate that the question1 2 3 4 5 6 7 whether the land belonging to any particular judgment-debtor should be sold or not would arise at the execution stage and not necessarily during the suit which precedes it. The rulings quoted by counsel for the appellant have been practically overruled by the Division Bench ruling of the Lahore High Court reported in AIR 1933 Lah. 397 followed by a Single Judge in AIR 1934 Lah. 609. These authorities were quoted by counsel for the respondent. We therefore find that the argument advanced by counsel for the appellant that the executing Court has no jurisdiction to consider the question of the sale of land has no substance in it."
8. There exists a contrary view of law, in that section 16 has no (sic) application when the question of liability of certain property to sale arises in the course of a suit and not in execution proceedings. This exposition of law is laid in the judicial decisions referred to below :-- In Surjan Chaudhuri v. Tegh Bahadur Singh and others , it is held :- "The objection that the land being of an agriculturist cannot be sold in execution cannot be raised before the executing Court where the decree itself directs the sale of the land."
35. In Ganesh Das and others v. Ganga Singh , it was held :--- "Where a decree orders the sale of a certain property for the realization of a debt, the objection that the judgment. debtor is an agriculturist and that the property cannot be sold in execution proceedings by virtue of the provision of the Acts cannot be raised for the first time in execution proceedings."
36. In Chittar Mal v. Mt. Ram Devi and others , it Is ruled :- "Section 60 (C. P. C.) is a prohibition against forcible attachment or sale, there is nothing in this enactment to prevent an agriculturist voluntarily selling or otherwise alienating his house. Where an agriculturist voluntarily agrees to mortgage his house section 60 does not apply."
37. In Budhu Ram and others v. All Shah , it is held :-- "Where a decree ordered sale of certain property for the realization of a debt, the objection that the judgment-debtor is an agriculturist and that the property cannot be sold in execution proceedings by virtue of the Alienation of Land Act, cannot be raised for the first time in execution proceedings. A Court executing a decree cannot go behind that decree in execution proceedings. If there is a contravention of section 16, Alienation of Land Act, by the decree, the proper course is to attack the decree itself and not a subsidiary order passed in execution". A similar question also came up for discussion before the Full Bench in Punjab National Bank Ltd., Ferozepur City v. Firm Rain Karan Ramji Lal and others , where it was ruled :- "If the decree to be executed has already determined the liability of the property to sale, the executing Court cannot question the validity of the decree or refuse to carry it out.
38. Section 16 was not intended to override this principle and give power to an executing Court to ignore and nullify the effect of the decree passed by a Court of law. Section 16 was meant to apply only to those cases where the liability of the land to be sold is not already determined by the decree itself, and the executing Court has to decide what property should be sold to satisfy the decree. In other words, the section is analogous to section 60, Civil P. C., which lays down that certain properties shall not be liable to be attached and sold in execution."
39. This proposition of law has been discussed by Bhide, J. at pages 375 and 376 as under :- "Moreover, after considering the wording of section 16 and the other relevant provisions of the Act, it seems to me doubtful if section 16 was really meant to apply at all when the question of liability of certain property to sale arises in the course of a suit and not in execution proceedings. Section 16 lays down that no land belonging to a member of an agricultural tribe shall be sold in execution of a decree or order of a Court. This would show that the section applies only when the question arises in execution whether such land should or should not be sold. Now, such a question can, I think, properly arise in execution only when the Court executing the decree has a choice in the matter and has to determine what property should be sold in execution. For, if the decree to be8 9 10 11 12 executed has already determined the liability of the property to sale, the executing Court cannot, according to the well-established principles governing execution of a decree question the validity of the decree or refuse to carry it out. See 53 Cal. 166 and 9 Rang. 480, etc. This is the usual rule and the question therefore is whether section 16 was intended to override this principle and give power to an executing Court to ignore and nullify the effect of a decree passed by a Court of law. If the intention of the Legislature were that no decree should be passed at all in any case directing the sale of land belonging to a member of an agricultural tribe, a provision to that effect could easily have been made. But it is significant that the Legislature has made no such provision. It appears therefore that the Legislature did not intend that a decree for sale of land should not be passed if it were not otherwise contrary to law. It seems reasonable in the circumstance to infer that section 16 was meant to apply only to those cases where the liability of the land to be sold is not already determined by the decree itself, and the executing Court has to decide (as in the case of simple money decrees) what property should be sold to satisfy the decree. In other words, the section seems to be analogous to section 60, Civil P. C., which lays down that certain properties shall not be liable to be attached and sold in execution. It was held by the Bombay High Court in 4 Bona. 25, that the house of an agriculturist, if specifically mortgaged, can be sold under section 60(c), Civil P. C., and a similar view was taken by a Full Bench of the Allahbad High Court in 34 All. 25, by a Division Bench of this Court in AIR 1935 Lah. 164.
40. I am aware of the fact that a wider interpretation has been placed on section 16 in some rulings of this Court and it has been held that even when the sale of land has been directed by a decree in a mortgage suit the executing Court must refuse to sell the land if it belongs to a member of a notified agricultural tribe. See e.g., AIR 1933 Lah. 397 and 18 Lah.
48. But with the greatest respect, I must say that certain aspects of the question do not appear to have been considered in these rulings. It seems to have been assumed that the object of the Punjab Alienation of land Act would be defeated unless section 16 was construed in the manner in which it was construed in these rulings. But there seems to be ample provision in the Act itself to ensure that no decree is passed by a Court which will be contrary to provisions of the Act and also if by any chance such a decree is passed, to get it rectified by a Court of appeal or revision. To take for instance, the case of mortgages (with which we are cancerned in the present case) we find that section 6 of the Act provides that a mortgage by a member of an agricultural tribe in favour of a person who is not a member of such a tribe must be for a limited period in one of the forms given in the auction. If the mortgage is effected in such a form, no question of sale of land in execution of a decree on the footing of such a mortgage can possibly arise.
41. If however a mortgage is effected in a different form in a case falling under section 6, section 9 gives power to a Deputy Commissioner to revise it and if such a mortgage comes before Court in the course of a suit, the Court has also to refer the matter to the Deputy Commissioner, if the provisions of section 9 are complied with no decree will therefore be passed for the sale of land belonging to a member of an agricultural tribe, where the mortgage is in favour of a person who is not a member of such a tribe. If the mortgage is in favour of a member of the same tribe, the Legislature has not placed any restriction on the form of the mortgage and presumably the Legislature intended that the ordinary law should take its course in such cases ; AIR 1929 All. 421.
42. Lastly, if by any chance section 9 is overlooked by a Court and a decree is passed for the sale of land on the footing of a mortgage which contravenes the Provisions of section 6, section 21-A gives power to the Deputy Commissioner to refer it to a Court of appeal or revision in order to get it rectified and brought into conformity with the provisions of the Act. In view of these provisions, it seems to me scarcely likely that the Legislature could have intended by section 16 that an executing Court should ignore a decree passed by a Court of law and refuse to carry it out. If it appears to an executing Court that a decree sought to be executed offends against any of the provisions of the Punjab Alienation of Land Act, it can easily stay the proceedings and give opportunity to the party concerned to get it corrected by bringing it to the notice of the Deputy Commissioner for necessary action under section 21-A of the Act. If this course is adopted the objects of the Act will be served and the anomaly of an executing Court questioning the validity of a decree will be avoided."
43. In this case, it may be noted, the learned Judges dissented from the law laid in AIR 1933 Lab. 379 and AIR 1936 Lah. 245, quoted above. It may also be pointed out that this Full Bench authority of 1940 was, it appears, not brought to the notice of the Division Bench in the case AIR 1943 Pesh. 52, quoted above, and as such this authority has not been referred to therein.
9. Applying the law laid in the AIR 1940 Lah. 370 to the facts of the present case, I am of the view that section 16 has no application when the question of liability of certain property to sale arises in the course of a suit and not in execution proceedings. Such a question is meant to apply to those cases where the liability of the land to be sold is not already determined by the decree itself and the executing Court has to decide what property should be sold to satisfy the decree. In the present case the preliminary decree for Rs, 44,625 was awarded on 16-2-57 to the plaintiff against the judgment-debtors-appellants and others as charge on the mortgaged land belonging to the defendant. A final decree was also passed on 13-12-57 for an amount of Rs, 44,625 with costs in favour of the plaintiff, and it was ordered that the decretal amount and costs were recoverable by auction of mortgaged land of the defendants-judgmentdebtors. The executing Court has thus committed no illegality in selling the mortgaged land of the judgment-debtors-appellants in the execution of the decree.
44. 10.In conclusion, these appeals fail and are hereby dismissed.
45. A legal question was involved, the parties are to bear their own costs. 1911 P R 21 AIR 1933 Lah. 397 AIR 1934 Lah. 609(1) AIR 1936 Lah. 845 AIR 1937 Lah. 194 AIR 1940 Lah. 126 AIR 1943 Pesh. 52 AIR 1931 Lah. 545 AIR 1932 Lah. 529 A 1 R 1935 Lah. 164(1) AIR 1935 Lah. 443 AIR 1940 Lah. 370