JUDGMENT
1. This execution of decree appeal is preferred by the judgment-debtor. The material facts are as follows :
2. On 17th April 1920, a preliminary decree for sale on the basis of a deed of mortgage was passed by the Subordinate Judge, Barabanki, for RS. 1,06,660 with future interest at Rs. 5-4-0 per cent. per annum in favour of Gobardhan Das. A final decree on the basis of this preliminary decree was passed on 27th January 1923. On 19th March 1931, the names of Ballabh Das and Madan Murari, opposite parties Nos. 1 and 2, were substituted on the record as Gobardhan Das, the original mortgagee, was dead and they were his legal representatives. On 1st July 1932 Ballabh Das and Madan Murari applied for execution of their decree. They sought execution against Narendra Bahadur Singh, Rudr Pratap Singh. Jang Bahadur Singh and Sri Chandar Singh. Jang Bahadur Singh and Sri Chandar Singh were minors. It appears that there was a partition among the descendants of the original mortgagor Inder Dawan Singh and they agreed to pay the decretal debt in specified shares. The application for execution prayed for realization of a sum of Rs. 15,669-7-0 by sale of a 4 anna share in village Dakkhimpara, pargana Mangalsi, District Fyzabad. Before the property could be brought to sale Rudr Pratap Singh made an application under Section 4, Encumbered Estates Act on 20th November 1943. The Special Judge apportioned the debt and held him liable to pay only one-sixth of the amount claimed. The remaining five-sixth was to be paid by the other judgment-debtors. On 13th December 1943, the decree-holders prayed that the sale officer, Fyzabad, be directed to put to sale a five-sixths share of the property mentioned in the execution application for satisfaction of the debt. The present appeal arises out : of the objections preferred under Section 47, Civil P. C., against that application. The main grounds of objections were :
"(1) that the Special Judge's order apportioning the debt between Rudr Pratap Singh, who had applied under the Encumbered Estates Act, and the non-applicant debtors did not constitute a decree and so could not be executed;
(2) that the property sought to be sold was protected land could not in view of the provisions of Section 17, U. P. Debt Redemption Act, be sold for satisfaction of the decree; and (3) that the objectors were agriculturists and the decree sought to be executed against them, was liable to amendment under the provisions of the Agriculturist Relief Act."
The learned Civil Judge of Fyzabad dismissed these objections and directed the execution to proceed in accordance with the law. We have heard the learned counsel for the appellants at some length, but are satisfied that there is no substance in this appeal. We will deal with the points of objections raised in order.
3. The first point, namely, that the Special Judge's order apportioning the debt between the applicant and the non-applicant landlords did not amount to a decree is irrelevant and besides the point. What the decree-holders, Ballabh Das and Madan Murari, sought by their application of 13th December 1943, was a continuation of the proceedings in execution intitiated by their application of 1st July 1932. There was no application for execution of any fresh decree or order, so the question whether the order of the Special Judge apportioning the debt between the applicant and the non-applicant landlords does or does not have the force of a decree is immaterial.
4. Section 26, U. P. Debt Redemption Act, empowers the Provincial Government to make rules consistent with the provisions of the said Act for carrying out the purpose of the Act. Under Rules 3 and 4 of the rules framed by the Provincial Government it is clear that the determination of the question whether any land sought to be sold in execution of a decree is protected land and should not be sold under Section 17 of the Act is left to the Collector. It is his province and not that of the civil Court to decide the questions arising in this connection. Rule 4, U. P. Debt Redemption Rules reads thus :
"(1) On receipt of a decree for execution under Rule 3, the Collector shall, having regard to the provisions of Clause (c) of Section 3, and the first proviso of Sub-section (1) of Section 17 of the Act, proceed to determine the local rate payable by, or recoverable from the judgment-debtor, or each of the judgment-debtors where there are more than one.
(2) Where the local rate determined under Sub-rule (1) in regard to any judgment-debtor does not exceed Rs. 25, the whole of his land shall be determined as protected land.
(3) Where the local rate so determined In regard to any judgment-debtor exceeds Rs. 25, the Collector shall with due regard to the wishes of the judgment-debtor, proceed to determine what portion of the land shall be protected land.
(4) The Collector shall see that the area of the land determined under Sub-rule (3) is as far as possible compact, and is situated in a village in or near which the judgment-debtor resides."
It is clear therefore that the learned Civil Judge was right when he held that the question whether the land against which execution was sought was liable to be sold, or if it was protected land, was not a matter which could be determined by him in a proceeding under Section 47, Civil P. C.
5. The last objection, namely, whether the objectors were agriculturists and if the decree passed against them was liable to an amendment under the provisions of the Agriculturists' Relief Act is also without substance. This was a matter which could be agitated by a separate application and an objection on that ground could not be properly considered in a proceeding under Section 47, Civil P. C.
6. We are satisfied that the objections were rightly thrown out. The appeal is dismissed with costs. The stay order dated 20th March 1946 is vacated.