Bombay High Court
Narayan Ganesh Ghatate vs Baliram on 9 May, 1918
Equivalent citations: (1919)21BOMLR53
JUDGMENT Sumner, J.
1. This is an appeal against a judgment of the Court of the Judicial Commissioner of the Central Provinces, which affirmed an order of the District Judge made in execution proceedings on a foreclosure decree. The point has been very clearly argued, but their Lordships do not think it necessary to take time to consider the matter further.
2. The history of the case, which is rather complicated, is set out chronologically and very conveniently in the judgment appealed against. The point for decision is one dependent on the construction of Section 45 of the Central Provinces Tenancy Act of 1898, Chapter IV, "Of Occupancy-Tenants," and particularly Sub-section 6 of that section.
3. The substance of the decision of the Court below was that the Conciliation Award of February 1905 was, for the purposes of this case, a fresh origin of the rights between the parties, and that, although it came into existence in consequence of the mortgages of 1881 and 1884, and transactions there under, it was, both for the purpose of enforcement and for the purpose of the application of this particular section, the transaction between the parties which was the foundation of their rights. Accordingly they concluded that the transfer made or decreed by the proceedings under review could not be said to be in pursuance of the older mortgages of 1881 and 1884, which, as documents expressly providing for the transfer of the right to occupy sir land as a proprietor within Sub-section 6, would have been saved from the operation of Sub-section 1, but that in truth Sub-section 1 of Section 45 must be applied and that therefore, in spite of the terms of the award, which in virtue of the agreement of reference became the agreement of the parties, the mortgagor could not so transfer his right to occupy sir land as to divest himself of his right as an occupancy tenant under the Act.
4. The reasons, their Lordships think, are sufficiently and fully given in the judgment appealed against and do not require repetition. It is a question of construction, not incapable of being argued and even decided either way, but their Lordships see no reason to differ from the decision appealed against, and will humbly advise His Majesty that the appeal be dismissed, but without costs, as the respondents have not appeared.