TMI Blog1965 (4) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued. In the sale certificate, khasra numbers together with area of every one of them were specified. It was on an application filed by decree-holder's agent, asserting that the decree-holder was entitled to the growing crops also, that possession of the land alongwith standing crops was delivered to the auction purchaser, without notice to the judgment-debtor. The judgment-debtor then raised the objection that possession of the growing crops could not be given to the auction purchaser inasmuch as the standing crops were sown by him and that they were neither attached, nor sold in execution of the decree. He complained that it was excessive execution and prayed for restitution of the standing crops, i.e., restoration of possession of the crops; alternatively, ₹ 20,000/-as damages. The decree-holder purchaser resisted the above objection and also said that in case it be held that she was not entitled to the growing crops, she was liable to account for ₹ 5317/3/- only. The 1st Additional District Judge, Raipur, who was executing the decree held that the judgment-debtor was not entitled to a notice of the auction purchaser's application dated 12 October 1960 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wood or had parked his car or had stored machinery, none of these things would pass to the purchaser merely because the land has been sold. Growing crops being chattel within the meaning of the Code of Civil Procedure, the property will not, ipso facto, pass to the purchaser of the land, unless it is specifically sold along with it. The question what was actually sold is always one of fact. The answer must depend upon such considerations as what was put for sale; what was intended by the Court to be sold and what the purchaser understood that he was buying and paid for the same. In Abdul Aziz Khan Sahib v. Appayasami Naicker 31 IA 1 (PC), their Lordships of the Privy Council held that the question as to the extent of the property and the interest of judgment-debtor therein sold, depends upon what the Court intended to sell and the purchaser understood he bought. Their Lordships of the Supreme Court, referring to certain decisions of the Privy Council, observed in S.M. Jakati v. S. M. Borker AIR 1959 SC 282, that the query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : AIR 1916 Cal 339 (supra) both of which were criminal cases and in both of which the questions for consideration were different. Another reason, which was given in Beniprasad case AIR 1953 Nag 9 was that there was a local amendment to Order 20, Rule 14 (Preemption decree), Civil Procedure Code, to the effect that if there are crops standing on the property, possession of the property shall not be delivered to the plaintiff until such crops have been reaped, but no such amendment had been made to Order 21, Rule 35 of the Code. No other reason was given. Provisions of the Code of Civil Procedure were not considered. If any of the decisions relied on by the learned counsel for the purchaser can be read as to hold that growing crops pass to the purchaser by virtue of the mere fact that the land has been sold in an execution sale, I am unable to subscribe to it. To sum up the aforesaid discussion: (1) The law is that on an execution sale, it is the right, title and interest of the judgment-debtor in the property sold that passes to the purchaser. (2) What is sold is a question of fact, the determination of which depends upon considerations such as what was really put up for sale, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sht and sir lands in village Thelka, area 300.86 acres per list attached therewith. In the list attached to the sale certificate were entered all khasra numbers together with the area of every one of them, but there is no mention of any growing crop. Thus, starting from the decree-holder's application for sale to the issuance of the sale certificate, at all stages, the khasra numbers are enumerated and their areas are specified, but there is no mention any where of the growing crops. The procedure that was throughout taken recourse to was one provided for attachment and sale of Immovable property, that is, land. On 7 October 1960, the purchaser applied for delivery of possession. A list of khasra numbers and their areas was attached. In the application there is no mention of any growing crops, but the words Mai Fasal Ke appear as an interpolation in the list. The list is drawn in pencil but the words Mai Fasal Ke are added in ink. To the warrant of possession dated 10, October 1960 were attached two carbon copies of the same list. There also are visible similar interpolations. At first the words Mai Fasal Ke were added after the words Dakhal qabza pana hai. Then they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crops also along with the land. The irresistible conclusion from these facts and circumstances is that growing crops were not intended to be sold, nor were they sold, nor did the purchaser understand that she was buying them, nor did she buy them, nor did she pay for them. The judgment debtor is entitled, by way of restitution to get from the purchaser the market price of the crop;s which were standing on 12 October 1960 on those fields which were in the actual cultivation. The case of others is not before us. It remains to be mentioned that a preliminary objection was raised for the respondent. Shri Adhikari contended that no appeal lay from the order of the executing Court whereby the judgment-debtor's application of 1 November 1960 was dismissed. Firstly, this objection, having not been raised before the learned single Judge who decided the appeal cannot be raised for the first time in this Letters Patent Appeal. Moreover, I see no substance in the preliminary objection. The judgment-debtor clearly complained that there had been excessive execution and also that the purchaser's application for delivery of possession of the growing crops was allowed without notice t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Facts relevant for our purpose are as follows: (1) On 15/20-10-1948, by a compromise decree in civil suit No. 27-B of 1947, a charge was created by the Court of the Additional District Judge, Raipur, on numerous plots of land situate in village Thelka belonging to the judgment-debtor appellant for the payment of certain sums of money due on the decree. (2) On 6-5-1950, a proclamation for sale in respect of the lands aforesaid was issued under Rule 66 of Order XXI of the Code of Civil Procedure. To this proclamation a list of the khasra numbers intended to be sold together with their areas was also attached. The list mentioned no crop, and no crop could have been standing on the lands on that date. (3) On 21-5-1960, the proclamation for sale was affixed in the village; and on 27-5-1960, it was affixed in the Court premises. (4) On 4-8-1960, the auction-sale of the fands aforesaid was completed and it was knocked down in favour of the decree-holder auction-purchaser for a sum of ₹ 30,000/-. By this date, the lands had been sown by the judgment-debtor and the crops at least in the sense of 'sprouted seeds' were standing on the lands. (5) On 4-10-1960, ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;. Seeds which have even just sprouted would come within the aforesaid definition. Paddy takes about three days for germination and is ordinarily sown at the latest by the first week of July. Consequently, it must have taken the shape of a growing crop. Same would be the case with the other crops sown on the lands at about the same time. It cannot, therefore, reasonably be said that there was no growing crops on the lands in suit on 4-8-1960 which could be claimed by the judgment-debtor appellant under the circumstances of the case. It is not disputed that at the time the lands were attached or proclaimed for sale, there were no standing crops thereon. None was, therefore, attached or proclaimed for sale. What was, therefore, intended to be sold was land simpliciter and what the auction-purchaser understood that he paid for or bought was also land only and not the land with crop. Under the circumstances, the decree-holder auction-purchaser could legitimately lay claim to the lands only and not to the lands and the crops growing thereon. It is settled law that in a court auction-sale the question is not what the Court could or should have sold but what it 'had sold'. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined by the order of the Court and the proclamation. While considering the question as to what passes by a court auction-sale, the Supreme Court in AIR 1959 SC 282 at p. 289 said : The question which assumes importance in an auction sale of this kind therefore is what did the Court intend to sell and did sell and what did the auction-purchaser purport to buy and did buy and what did he pay for ..... The query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree. Mt. Nanomi Babuasin v. Modun Mohun 13 IA 1 ; Bhagbut Pershad v. Mt. Girja Koer 15 IA 99 Meenakshi Nayudu v. Immudi Kanaka Ramaya Goundan 16 IA 1 (PC), Rai Babu Mahabir Pershad v. Rai Markunda Nath Sahai 17 IA 11 at p. 16 (PC) and Daulat Ram v. Mehar Chand, 14 Ind App 187 (PC). I am, therefore, of opinion that as the crops were neither charged, nor proclaimed for sale, nor auctioned, nor bid for; nor purchased at the said auction-sale, the decree-holder auction-purchaser got no title to it. It may here be mentioned that under the Code of Civil Procedure, growing crops are moveable property: (see Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty Act, that on an auction-sale of land, the crop growing thereon automatically passes to the auction-purchaser. The principle of English common law, which is of great antiquity, is founded on the legal maxim: 'Quicquid plantatur solo, solo cedit'. As pointed out by Gour in his commentary on the Transfer of Property Act, the principle, which now appears to be so simple, has had to fight its way to recognition through the tangled mass of heterogeneous devices against allowing the free alienation of property. At first through subterfuges, and then gradually by the interpretation of equity, the right of alienation had had to be recognised and with it became established the sensible doctrine here enunciated. See para 360 at p. 246 of Sir Hari Singh Gour's Transfer of Property Act, Vol. I, Sixth Edition. But, even before the coming into force of the Transfer of Property Act, the principle had not been accepted in India. Examining the question, Mooker jee and Carnduff, JJ. in Mofiz Sheikh v. Rasik Lal Ghose ILR Cal 815 at pp. 820-821 said: These cases (Berriman v. Peacock (1832) 9 Bing 384 : 35 R.R. 568, Penton v. Robart (1801) 2 East 88 : 61 R R. 376, Wyndh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1 AC 762 at p. 772, Mears v. Callender (1901) 2 Ch. 388, notes to Elwes v. Maw (1802) 2 SLC 189 : 3 East 38 while in American Courts, when an attempt was made to apply in its entirety the doctrine that whatever is once annexed to the freehold becomes part of it, and cannot afterwards be removed except by him who is entitled to the, inheritance. Mr. Justice Story, in delivering the unanimous judgment of the Supreme Court of the United States, declined to give effect to the contention on the ground that the Law of Fixtures was not suited, in its unqualified form, to the circumstances of the country: Nees v. Pacard (1829) 2 Peters 137. Under such circumstances, it would obviously be inappropriate to extend the doctrine of Fixtures to this country as based on equitable grounds. This position is fortified when we remember that neither the Hindu Law nor the Mahomedan Law recognised any Law of Fixtures, as was pointed out by Sir Barnes Peacock, C. J. in the case of Thakoor Chunder Paramanick v. Ramdhone Bhuttacharjee 6 SWR 228 . The general principle, which obtained in India, was enunciated by their Lordships of the Calcutta High Court in 6 SWR 228. They said-- We think it clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 8 of the Transfer of Property Act to the facts of the case, and consequently it could have no relevance to cases to which the Section 8 did not apply. It appears that the local amendment was giving effect to Section 8 of the Transfer of Property Act while passing decrees in pre-emption suits. No help can, therefore, be drawn from the language of decrees in preemption suits, especially when the provisions of Section 8 of the Transfer of Property Act have no application to execution sales. I shall now briefly examine the cases on which reliance is placed for the proposition that on the decree-holder auction-purchaser being put in possession of the land, he automatically becomes entitled . to the crop growing thereon whether the crop standing on the land was attached, proclaimed for sale or auctioned, or not. The first case relied on is reported in ILR Cal 814. The case was decided in the year 1879 when neither the Transfer of Property Act nor the Code of Civil Procedure had come into existence. The case related to an auction-sale of an under-tenure which had fallen into arrears of rent during the proceedings relating to execution of the decree against the tenant. The sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of the judgment in Afatoolla's case ILR Cal 814 was doubted by Caspersz and Sharfuddin JJ. in Gajendra Ghorai v. Emperor 15 Cal LJ 80 where they said, .. .. we are not prepared to accept the contention that possession of the land would necessarily connote delivery of possession of the crop grown thereupon. On this point, Mr. Justice Jackson in ILR 4 Cal 814, the case to which the District Magistrate has referred, expressed his judgment with some uncertainty. He was then dealing with the sale of an under-tenure for arrears of rent under Section 66 of Bengal Act VIII of 1869. The second case relied on is ILR Mad 15. This was again a case decided in 1889, i.e., prior to the coming into force of the Code of Civil Procedure of 1908. This decision is again based on what the learned Judge is pleased to call 'the ordinary rule', which he says the Sub-Judge had overlooked. There is no discussion- to show from where the rule relied on was derived. From his further discussion it, however, appears that probably he had either the rule of the English common law or the provisions of Section 8 of the Transfer of Property Act in mind, because the learned Judge proceeded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself. The aforesaid discussion can have no relevance to sales in execution of decrees. : AIR 1934 Cal 610 : ILR 61 Cal 991,was a criminal case where a Division Bench of the Calcutta High Court while considering the correctness of a charge to the jury in regard to the plea of private defence of property, raised by the accused, said: The proposition that the right to the growing crop passes by the sale of, the land, in the absence of an express provision to the contrary, and the connected proposition that, in the case of a court sale, the right to the possession of the crops accrues from the date of delivery of possession of the land, hardly requires to be supported by authority, but if authority be needed, it is sufficient to refer to ILR Mad 15 and Abinash Chandra Sarkar v. King-Emperor 23 CWN 385 : (AIR 1919 Cal 588). The decision was thus sauarely based on the authority of Ramalinga's case ILR Mad 15 (supra) which, as pointed out above, besides having been decided prior to the coming into operation of the Code of Civil Procedure, 1908, had also not taken note of the fact that neither the English common law doctrine nor the provisions of the Transfer of Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad grown, an order of the trial Court declaring him entitled to possession under Section 145 of the Code of Criminal Procedure was set aside because, in the opinion of the learned Judge (Mya Bu, J.), it was contrary to all principles of justice. With respect, the decision is contrary to the well-established principle that in proceedings under Section 145 of the Code of Criminal Procedure, the Courts are not concerned with questions of title but only with the actual physical possession of the land in dispute; but that apart, in has no relevance to the question with which we are concerned in this case. AIR 1953 Nag 9 was a judgment dismissing a miscellaneous second appeal in limine under Rule 11 of Order XLI of the Code of Civil Procedure without notice to the other side. In this case, the learned single Judge, relying on AIR 1939 Rang 388 and AIR 1916 Cal 339 (supra) held that when a decree-holder is put in possession of land under Rule 35 of Order XXI of the Code of Civil Procedure, such possession includes crops standing on that land. There is no discussion of the principle on which the conclusion was based; and the decisions in AIR 1939 Rang 388 and AIR 1916 Cal 339 (supra), o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff may possibly be entitled to mesne profits if the second defendant continued in occupation of the land after her title had been extinguished by the execution sale. I am, therefore, of opinion that by the sale of the land simpliciter, the decree-holder auction-purchaser acquired no title to the crops standing thereon, which continued to vest in and belong to the judgment-debtor appellant. It was also contended that the appeal was incompetent under Section 47 of the Code of Civil Procedure. The question was not raised before the learned single Judge and, in my opinion, there is no merit in it. That Section 47 of the Code of Civil Procedure should be liberally construed admits of no doubt, because, as far back as 1892, the Judicial Committee of the Privy Council in Prosunno Commar Senyal v. Kasi Das Senyal 19 IA 166 had pointed out that it was of the utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible. Their Lordships further noted that they were glad to find that the Courts in India had not placed any narrow construction on the language of Section 244 (now Section 47) of the Code of Civil Procedure; and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer of the Court executing the decree. In Keshori Singh v. Umrao Singh 20 Nag LR 90 : (AIR 1924 Nag 246) the facts were that a judgment-debtor applied to the executing Court for enquiry into the fact that certain property belonging to him was attached or taken possession of by the decree-holder under colour of the decree, but not listed or returned to him, it was held that the matter was one in which the Court could not decline to hold the enquiry under Section 47 of the Code of Civil Procedure and refer the judgment-debtor to a regular suit. In J. Marret v. Md. K. Shirazi and Sons, AIR 1930 PC 86 at p. 90 the plaintiff obtained a decree only against one of the two defendants F. and M., viz., F., but wrongly took in execution monies which had been paid by a surety of M., because of an erroneous construction of the surety bond. The learned Judicial Committee said: .. .. .. there seems to be another answer to the case, and that is, that, by Section 47, Civil Procedure Code, all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution and satisfaction of the decree shall be decided by the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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