Appeal No 1016 of 1966
Appeal by Special leave from the order dated October 15 1965 of the Board of Revenue UP in Revision No 2 E of 1964 Saharanpur
JP Goyal  and SM Hanif for the appellants
SV Gupte GD Gupta and B P Maheshwari for respondents Nos 1 to 3
delivered by Vaidialingam J
The question that arises for consideration in this appeal by special leave is as to whether the bhumidhari rights and trees belonging to the appellants can be proceeded against and sold for realisation of the debts due to the respondents under the UP
Encumbered Estates Act 1934 Act XXV of 1934 as amended hereinafter referred to as the Encumbered Estates Act
The contention of the appellants iS that they cannot be sold whereas according to the respondents they can be sold
The predecessors in interest of the appellants were Landlords owning immovable properties including agricultural land trees groves and well situate in the various villages in the District of Saharanpur
They were very heavily indebted the debts being both secured and unsecured payable by them to the creditors
The respondents were among the secured creditors to whom large amounts were due
On or about March 26 1936 the appellants predecessors in interest filed an application under section 4 of the Encumbered Estates Act to the Collector for determination of their debts
As required by section 6 of the said Act the Collector forwarded this application to the Special Judge Saharanpur appointed under s3 of the said Act and the said application was registered as Suit No23 of 1936
After complying with the other formalities under the Encumbered Estates Act the Special Judge on December 23 1936 passed a decree under s147
of the Encumbered Estates Act
The said decree was amended on 568 January 23 1938
The Special Judge granted a decree in favour of respondents 1  to 3 for two sums of Rs 36000 and Rs 25000 on loans secured over properties mentioned in Schedules A B and C of the decree
They were also granted a decree for Rs 9000 which was the decree debt for the payment of which the mother of the daughter had stood surety
Over and above these amounts the respondents were given a decree for Rs 3500 for an unsecured debt
The liquidation proceedings which were started under the Encumbered Estates Act and were pending before the Collector were stayed till 1954 in view of the contemplated legislation for abolition of zamindari the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950 UP Act 1 of 1951 hereinafter referred to as the Abolition Act and the appellant s estate vested on July 1 19 52 in the State by virtue of the notification issued under section 4 1  of that Act
The liquidation proceedings pending before the Collector under the Encumbered Estates Act were reopened in the year 1955
On May 15 1959 the respondents made an application to the ASsistant Collector of Saharanpur to whom the powers of the Collector for the purposes of section 24 of the Encumbered Estates Act had been delegated to recover the amounts decreed to them by the Special Judge by proceeding against the bhumidhari rights and trees belonging to the appellants and to auction the same under section 24 of the Encumbered Estates Act
The appellants filed objections briefly to the following effect
The decree holder iS not entitled to proceed against the bhumidhari rights or the trees in their possession
The decree holder s debts are secured debts and they are entitled only to three fourths of the Zamindari Abolition and Rehabilitation Grants and that they are not entitled to get anything more under the decree  The list forwarded by the Special Judge does not refer to any of their rights now sought to be attached and therefore no execution can be levied against such properties
Bhumidhari rights accrued only after the abolition of the zamindari and as such they cannot be proceeded against for realisation of the decreed amounts
The Assistant Collector by his order dated February 21 1961 upheld the objections of the appellantsdebtors and  dismissed the application of the decree holders res pondents for sale of bhumidhari and other rights in the properties mentioned by them
The basis
on which the Assistant Collector declined to allow execution to proceed was that bhumidhari rights represent the proprietary rights which the zamindars on the abolition of the estate were allowed to retain by the Abolition Act
In substance those rights were the original proprietary rights though a new name of bhumidhari rights was given to them
The respondents challenged this order of the Assistant Collector in appeal under section 453 of the Encumbered Estates Act 569 before the Commissioner Meerut Division who by his order dated March 24 1965  reversed the order of the ASSistant Collector and held that the trees and bhumindhari rights of the appellants could be sold in execution of the decree
The view of the Commissioner is that such rights are rights other than proprietary rights
The prOhibitiOn contained in the Encumbered Estates Act is only regarding the sale of proprietary rights and bhumidhari fights not being proprietary rights could be proceeded with in execution  The appellants filed a revision under section 462 of the Encumberedestates Act before the Board of Revenue
The two contentions that were raised by the appellants before the Board of Revenue were i bhumidhari rights are proprietary rights in land and as such no execution can levy against such rights ii the bhumidhari rights sought to be proceeded against have not been mentioned in the list of properties sent by the Special Judge to
the Collector under section 19 of the Encumbered Estates Act and therefore they cannot be sold in liquidation proceedings under Chapter V of the Encumbered Estates Act
Both these contentions were rejected by the Board of Revenue who by their order dated October 15 1965 confirmed the order of the Commissioner and dismissed the appellant s revision petition
The Board of Revenue has held that bhumidhari rights are not proprietary rights and so long as there is no prohibition under the Abolition Act to proceed against them the decree holder was entitled to attach and sell those rights
The Board further held that the properties have been mentioned in the list sent by the Special Judge and the nature of the rights viz bhumidhari rights could not have been mentioned on the date when the list was sent because such rights were obtained by the appellants long thereafter
It is against this order of the Board that the appellants have come up to this Court in appeal
Mr Goyal learned counsel for the appellants urged that the decree obtained by the respondents
under the Encumbered Estates Act as provided under section 148 thereof shall not be executable within UP except under the provisions of this Act  Section 19 of the Encumbered Estates Act provides for the Special Judge informing the Collector of the nature and extent of the property mentioned in the notice under section 11 which he has found to be liable for attachment and sale in satisfaction of the debts of the applicant
Section 24 provides for the Collector realising the value of such of the debtor s property other than the proprietary rights in land as shall have been reported by the Special Judge under the provisions
of sub section
2 of section 19 to be liable to attachment or sale
Having due regard to these provisions the counsel urged that the bhumidhari rights granted to the 570 appellants under the Abolition Act having not been admittedly reported by the Special Judge cannot be proceeded against in execution under the Encumbered Estates Act
The counsel further urged that bhumidhari rights are special and new rights given under the Abolition Act to the former proprietors of the estate which vested in the State
Those rights cannot be proceeded against for realisation of the debts due to the respondents
Counsel referred us to the material provisions of the Encumbered Estates Act and the Abolition Act in support of the above contentions
Mr Goyal also urged that the rights of the respondents if any are only to proceed against the compensation awarded under the Abolition Act
In support of his contention that the bhumidhari rights are new and special rights Mr Goyal referred us to two decisions of this Court in Rana Sheo Ambar Singh vs Allahabad Bank Ltd Allahabad1 and Krishna Prasad vs Guari Kumari Devi2
On the other hand Mr Gupte learned counsel for the respondents urged that the respondents are executing the decree strictly in accordance with the provisions of the Encumbered Estates Act
In this connection counsel pointed out that whatever rights of the respondents as mortgagees originally might  have been the decree passed under the Encumbered Estates Act under section 147bi in favour of the respondents is only a simple money decree
Therefore the provisions dealing with the rights of a mortgagee in respect of an estate under the Zamindari Abolition Act dO not have any material bearing
He also referred to section 18 of the Encumbered Estates Act to show that the effect of a decree of a Special Judge under section 147 is to extinguish the previously existing
rights of mortgage or security
The properties which are sought to be proceeded against are clearly referred to by the Special Judge in the decree sent to the Collector under section 19 of the Encumbered Estates Act
Under cl
b of section 19 2 it was only necessary to state the nature and extent of the property and the Special Judge has informed the Collector of those particulars
SeCtion 24 gives power to the Collector to realise the value of such
of the debtors  property as has been reported by the Special Judge under sub section
2 of section 19
It is against such property that the respondents are proceeding against for realisation of their dues
Mr Gupte further urged that the fact that at the time when execution is levied the right of the appellants is the bhumidhari rights in those identical properties is not of any consequence
The decisions
relied on by Mr Goyal the counsel points out had no occasion to deal with the rights of a creditor under the Encumbered Estates Act
He further pointed out that there is nO provision in the Abolition Act
barring attachment and sale of bhumidhari rights
The counsel 1 1962 2SCR 441
2 1962 Supp
3 SCR 571 finally urged that the main purpose of the Encumbered Estates Act was to help to preserve the proprietary rights of land owners in UP and at the same time to evolve a machinery to liquidate their rights
It could not be the intention of the Legislature on the one hand tO preserve property rights in land even though it is encumbered with heavy debts and on the other to provide the creditors no machinery for realisation of their dues
It will be seen from the rival contentions set out above that the main question that arises for consideration is as to whether the bhumidhari rights of the appellants obtained by them under the Abolition Act can be proceeded with for realisation of the decree obtained by the respondents under the provisions of the Encumbered Estates Act
This takes us to a consideration of the material provisions of the Encumbered Estates Act and the Abolition Act
The object of the Encumbered Estates Act is to provide for relief of encumbered estates in UP Section 2 defines among other expressions debt  land  and landlord  Section 3 deals with the appointment of a Special Judge
Section 4 provides for the landlord who is subject to or whose immovable property or any part thereof is encumbered with private debts
for making an application within the time mentioned therein to the concerned Collector requesting that the provisions of the Encumbered Estates Act be applied to him
The landlord has to state in the application the amount of private debts as also his public debts both decreed and undecreed
Section 6 deals with the transmission to the Special Judge of the application received by the Collector under section 4
The Collector has also to inform the Special Judge of any public debts outstanding against the landlord
Section 7 deals with the consequence of acceptance of an application by the Collector
In brief all pending proceedings excepting proceedings by way of appeal or revision stand stayed and all attachments and other execution processes are declared null and void
No fresh suit or other proceeding excepting an appeal or revision against a decree or order can be instituted in any civil or revenue Court
Section 8 deals with the Special Judge who has received an application under section 6 calling upon the applicant landlord to submit a written statement containing full particulars regarding the public or private debts to which the landlord is subject or his immovable property is encumbered the nature and extent of the landlord s proprietary rights in land the nature and extent of his property liable to attachment and sale under section 60 CPC and the names and addresses of his creditors
Under section 9 the Special Judge has to publish in the Gazette a notice calling upon all persons having claims in respect of private debts both decreed and undecreed against the landlord or his property
Section 10 provides that every claim made under Sup
CI70 6 572 section 9 should contain full particulars of the claim and also to the extent possible the nature and extent of the landlord s propfietory rights in land as also the nature and extent of the landlord s property other than proprietary rights
Section 11 requires the Special Judge to publish a notice specifying the property mentioned by the landlord under section 8 and by a claimant under section 10
It also provides for any person having any claim to the property mentioned in such notice of making an application to the Special Judge specifying his claim and for investigation by the Special Judge whether the property specified in the claim or any part thereof is liable to attachment sale or mortgage in satisfaction of the applicant
Section 14 empowers the Special Judge after giving the necessary notices in that behalf to examine each claim and determine the amount if any due from the landlord to the claimant on the date of the application under section 4
Section 14 7 b provides for the Special Judge on finding that an amount is due to the claimant to pass a simple money decree
Sub section
8 states that every decree passed under sub section
7 shall be deemed to be a decree of a Court of competent jurisdiction but shall not be executable within UP except under the provisions of the Encumbered Estates Act
Section 18 dealing with the effect of the finding of the Special Judge states that the existing relationship between the debt and the property which is charged or mortgaged for that debt are extinguished and the decree that is given by the Special Judge is stated to substitute for the previous rights a right to recover the amount of the decree in the manner and to the extent thereafter provided
It has already been noted that under section 14 it is only a simple money decree that is passed by the Special Judge
Section 19 provides for the transmission of the decrees passed by the Special Judge to the Collector for execution in accordance with the provisions of Chapter V
The Special Judge is also to inform the Collector of the nature and extent of the property mentioned in the notice under section 11 which he has found to be liable to attachment or sale in execution of the debts of the applicant
In the case before us there is no con troves that the Special Judge has complied with this provision
Chapter V deals with execution of decrees and liquidation of debts and section 24 provides for the Collector to whom the decree has been transmitted by the Special Judge under section 19 to proceed to realise the value of such of the debtor s property other than proprietary rights in land as shall have been reported by the Special Judge under the provisions of section 192 to be liable to attachment and sale
In this connection it may be stated that the question that will arise for consideration is whether bhumidhari rights are the debtor s property other than proprietary rights in land 
If they are not proprietary rights in land then 573 under this section they are liable to be sold under auction because the nature and extent of the property has been mentioned by the Special Judge in his report under section 192 to be liable to attachment and sale
From the provisions referred to above the Scheme of the Encumbered Estates Act appears to be as follows
Any landlord who is encumbered with private debts can make an application to the prescribed authority for applying the provisions of that Act
The Special Judge after making the necessary publication calls for claimants against the landlord and also ascertains the property of the debtor
He then examines the claimants and determines the amounts of debt due and passes a decree under section 7 of the Encumbered Estates Act if amounts are found to be due but even though the amount may have been charged on the property the Special Judge passes only a simple money decree
Under section 148 the decree so passed is deemed to be a decree of a Civil Court of competent jurisdiction and it shall not be executable except under the provisions of the Encumbered Estates Act
Once the matter goes within the jurisdiction of the Special Judge the existing relations between the debt and the property which is charged or mortgaged for that debt are extinguished and the decree is only a simple money decree and not a mortgage decree
The mode of execution is then described in section 19 under which the Special Judge transmits the decrees for execution to the Collector informing the latter among other matters of the nature and extent of the property which he has found to be liable to attachment or sale in satisfaction of the debts
The Collector under section 24 has to realise the value of the debtor s property other than proprietary rights in land
In the case before us we have already referred to the various stages leading up to the respondents obtaining a decree and the decree being transmitted for execution as well as the final order of the Board of Revenue accepting the right of the respondents to levy execution against the bhumidhari rights in the land
Under the Abolition Act there is no controversy that the estate of the appellants vested in the State on July 1 1952 by virtue of the notification issued under section 4
Section 3 defines the various expressions
Section 4 deals with vesting of estates in the State on the issue of a notification thereunder
Section 6 deals with the various consequences of the vesting of an estate in the State
Clause h of section 6 provides that no claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money which is charged on or is secured by a mortgage of such estate or part thereof shall except as provided in section 73 of the Transfer of Property 1882 be enforceable against the interests of such third person
Section 574 18 deals with settlement of certain items with intermediaries of cultivators as bhumidhars
It is the claim of the appellants that under this section they have been given rights of a bhumidhar in respect of the properties which are now sought to be sold by the respondents in execution
Section 199 provides that no bhumidhar shall be liable to ejectment
We have not referred very elaborately to the provisions of the Abolition Act or its scheme because these have been considered in the previous judgment of this Court in Rana Sheo Ambar Singh s Case1
It is enough to state that no provision in the Abolition Act prohibiting the attachment and sale of the bhumidhari rights have been brought to our notice by Mr Goyal
In Rana Sheo Ambar Singh s Case1 the facts were briefly as follows
The proprietor of an estate had executed a simple mortgage of his proprietary interest in the estate consisting of 67 villages to the Allahabad Bank Ltd The Bank obtained a decree and while execution proceedings were pending the zamindan Abolition Act was passed by virtue of which the estate vested in the State and consequently the decree holder Bank could no longer sell the rights of the proprietor in the 67 villageS mortgaged to it
The Bank made an application to the executing Court to realise the amounts due to it by proceeding against the rights of the judgment debtor as remained in him after the coming into force of the Abolition Act
One of the rights of the judgment debtor which were sought to be proceeded against was the bhumidhari rights created under section 18 of the Abolition Act
The case of the Bank was that the judgment debtor s proprietary rights in grove land and sir and khudkast lands had been continued under section 18 of the Abolition Act and that in any event they constituted substituted security in place of the original proprietary rights mortgaged
The judgment debtor raised objections to execution being taken against his bhumidhari rights
The High Court upheld the view of the executing Court that execution could proceed against the bhumidhari rights
This Court reversed the judgment of the High Court and held that the proprietary rights in sir khudkast lands and groves vested in the State on the issue of a notification under section 4
This conclusion was reached after rejecting the contention of the decree holder that the proprietary rights in sir khudkast and grove lands did not vest in the State and that those rights were continued in the landlord under section 18
This Court further held that the Legislature was creating a new right under section 18 and the old proprietary right in sir khudkast and intermediaries  grove land had already vested in the State under section 6 and further observed at p 448 We are of opinion that the proprietary rights in sir and khudkast land and in grove land have vested 1 1962 2 SGR 441 575 in the State and what is conferred on the intermediary by s18 is a new right altogether which he never had and which could not therefore have been mortgaged in 1914
 In the later part of the judgment it was further held that the bhumidhari rights created under section 18 are not compensation and that they are special rights conferred on the intermediary by virtue of his cultivatory possession of lands comprised therein and that the decree holder cannot enforce his rights under the mortgage by sale of the bhumidhari rights created in favour of the landlords under section 18 so far as sir grove land and khudkast lands are concerned and that he can only follow the compensation money under section 6h The court finally rejected the contention that bhumidhari rights can be followed as substituted security
It will be seen that in the decision cited above this Court was considering the rights of a mortgagee as such to proceed against the bhumidhari rights and it was in that connection in view of the specific provision under section 6h of the Act and the nature of the new rights created under section 18 that this Court held that the mortgagee was not entitled to levy execution against the bhumidhari rights
The said decision also lays down that the bhumidhari rights granted under s18 were new rights created by the legislature and the old proprietary fight in the land had already vested under section 6 in the State
It is also clear from the said decision that bhumidhari rights created under s18 are not compensation and that they are special rights conferred on the intermediary by virtue of his cultivatory possession of the lands comprised therein and bhumidhari rights cannot also be considered as substituted security
The point to be noted and which has been emphasised in that decision is that all proprietary rights in the land had vested in the State and that no part of the proprietary rights remained in the landlord after the vesting of the estate in the State
It is further to be seen from that decision that the bhumidhari rights are no part of proprietary rights which the landlord had prior to vesting
In Krishna Prasad s Case1 the question that arose for consideration was whether under the Bihar Land Reforms Act 1950 hereinafter called the Bihar Act it was open to a mortgagee decree holder of an estate which  had vested in the State to levy execution personally against the mortgagor by attachment and sale of other properties of the mortgagor
It was held by this Court after a review of the provisions of the Bihar Act which were more or less substantially the same as those of the Abolition Act that the compensation payable on acquisition of 1 1962 Supp
3 SCR 562
576 a mortgaged estate had been made a kind of substituted security against which the mortgage claim could be enforced under the Bihar Act
It was further held that execution by way of a personal decree could only be done eventually if the realisation from the compensation amount was found insufficient to satisfy the decree
We may also refer to the decision of this Court in Shivashankar Prasad Sah vs Baikunth Nath Singh1
That decision had again to deal with the rights of a mortgagee decree holder to proceed against the Bakasht land of the judgment debtors and that right had to be decided under the Bihar Act
Section 6 of tiffs Act corresponds more or less to section 18 of the Abolition Act
In dealing with the scheme of the Bihar Act and in particular the effect of section 6 this Court observed Reading sections 3 4 and 6 together it follows that all Estates notified under s3 vest in the State free of all encumbrances
The quondum proprietors and tenureholders of those Estates lose all interests in those Estates
As proprietors they retain no interest in respect of them whatsoever
But in respect of the lands enumerated in section 6 the State settled on them the rights of raiyats
Though in fact the vesting of the Estates and the deemed settlement of raiyats in respect of certain classes of lands included in the Estates took place simultaneously in law the two must be treated as different transactions first there was a vesting of the Estates in the State absolutely and free of all encumbranches
Then followed the deemed settlement by the State of raiyat s rights on the quondum proprietors
Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within section 6
 Finally this Court held that the mortgagee decree holder s only remedy was to establish their claim under the Bihar Act and get compensation and that they cannot levy execution against the Bakasht land
In our opinion none of the decisions referred to above assists the appellants
Those decisions were directly concerned with the rights of the mortgagees as such to levy execution either as against the bhumidhari rights
or personally against the mortgagor or against his other properties
The right to levy execution was claimed by the decree holders as mortgagees after the estate mortgaged to them had vested in the State under the relevant Acts
Under those circumstances this Court held that the 1 Civil Appeal No 368 of 1966 decided on 7 3 1969
577 mortgagees  remedy was only to proceed against the compensation money as provided under the material provisions of the statute governing the same
None of those decisions had occasion to consider the question that now arises for consideration before us viz the rights of a decree holder under the Encumbered Estates Act
We have already referred to the nature of the decree that has been obtained by the respondents
Though at an earlier stage they were mortgagees it was a simple money decree that was granted to them under section 147 of the Encumbered Estates Act and their rights as against the mortgage securities had been extinguished under s18 of the Encumbered Estates Act
In this view s6h of the Abolition Act relied on by Mr Goyal does not assist him
It is no doubt true that the decree obtained by the respondents shall not be executable except under the provisions of the Encumbered Estates Act
The nature and the extent of the property liable to attachment and sale in satisfaction of the debts due to the respondent as required under s192b of the Encumbered Estates Act have all been furnished in the decree granted under s147 by the Special Judge and transmitted to the Collector under s19
Therefore when the respondents approached the Assistant Collector on May 15 1959 with an application to recover their debts from the bhumidhari rights of the appellants they were only in the position of holders of simple money decrees
If so execution can be levied normally from any property or rights which are liable to be attached or sold unless there is any prohibition imposed by the statute
Section 18 after extinguishing the rights in the property that may have been held under a mortgage or security specifically provides that  where any decree is given by the Special Judge they are in substitution of the original rights of a mortgagee or security holder and the decree holder has got the right to recover the amount of the decree in the manner and to the extent prescribed
Section 24 gives a right to the decree holders to recover their dues from the property of a debtor other than proprietary rights in land
Therefore the question is whether the bhumidhari rights conferred on the appellants under section 18 of the Abolition Act are property other than proprietary rights in land
If they are rights other than proprietary rights they can be proceeded against under section 24 read with section 18 of the Encumbered Estates Act
The decisions of this Court referred to above clearly lay down that the proprietary rights of the landlord in the land vest in the State on the passing of the relevant Abolition Acts
It has also been emphasised in Rana Sheo Ambar Singh s Case1 and as is also clear from section 6 of the Abolition Act that all rights 1  578 title and interest of all the intermediaries in every estate shall cease and be vested in the State on the issue of a notification under section 4 of the Abolition Act
If so it follows that after the estate vested in the State the appellants had no proprietary rights left in them and the bhumidhari rights as held by this Court being new rights created for the first time in favour of the appellants under section 18 of the Abolition Act and not proprietary rights the respondents are entitled to proceed against those rights under section 24 of the Encumbered Estates Act
Mr Goyal next urged that the bhumidhari rights have not been mentioned in the decree granted under section 147 nor have they been reported by the Special Judge under section 192 as being liable to attachment and sale as is necessary under section 24
True it is that these rights as such have not been mentioned
But a perusal of section 192b clearly shows that it was not necessary that the interest or rights of the debtor should be mentioned in the decree because the requirement is only regarding the nature and extent of the property and that has been mentioned in the decree granted in favour of the respondents by the Special Judge under section 147 and it has been reported to the Collector under section 192
If so the requirements of sections 19 and 24 have been complied with
Hence it follows that this contention of Mr Goyal cannot be accepted
There is also another reason for rejecting the said contention
Bhumidhari rights have been created in favour of the appellants only on July 1 1952 the date of vesting on the issue of a notification under section 4 of the Abolition Act whereas the amended decree in favour of the respondents has been passed under s147 as early as January 23 1938
When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than proprietary rights in land and when there is no prohibition in the Abolition Act against execution of decrees obtained under the Encumbered Estates Act against such rights it follows that the decree holder respondents are entitled to proceed against the bhumidhari rights and therefore the appellate order of the Additional Commissioner dated March 24 1965 and the revisional order of the Board of Revenue dated October 15 1965 upholding the right of the respondents in this regard are correct
The further question that arises is whether the respondents are entitled to levy execution against the trees in the possession of the appellants in execution of their decree
No doubt the general objection that was taken by the appellants before the Assistant Collector was that the groves formed part of the sir property and 
therefore the question of their being auctioned does not arise and that the groves do not form part of the list mentioned in the decree passed by the Special Judge
On the other hand according to
579 the respondents the trees never vested in the State under the Abolition Act and as the appellants continued to be the owners of the same execution can be levied against the trees
The contention of the appellants that the trees have not been mentioned in the list need not detain us because the amended decree passed by the Special Judge clearly refers to trees standing on the lands described in the Schedules
Then the question is whether the trees belong to the respondents
Section 326 of the Abolition Act states that the words and expressions mentioned therein and which have not been defined in the Act but used in the UP Tenancy Act 1939 shall have the meaning assigned to them in the latter Act
Two among the various expressions referred to in section 326 are grove  and grove holder 
Therefore we have to look into the UP Tenancy Act to find out the meaning of the expression grove  Section 36 of the UP Tenancy Act 1939 UP Act XVII of 1939 defines the expression grove land  as follows 36 grove land  means any specific piece of land in a mahal or mahals having trees planted thereon in such numbers that they preclude or when full grown will preclude the land or any considerable portion thereof from being used primarily for any other purpose and the trees on such land constitute a grove
 From the above it will be seen that grove  is something different  from grove land  because the definition says that the trees on such land viz grove land  constitute a grove 
Section 6 of the Abolition Act dealing with the consequences of the vesting of an estate in the State among other things states in cl
a 6a all rights title and interest of all the intermediaries i in every estate in such area including land cultivable or barren grove land forests whether within or outside village boundaries trees other than trees in village abadi holding or grove fisheries tanks ponds water channels ferries pathways abadi sites hats bazars and melas other than hats bazars and melas held upon land to which clauses a to c of sub section 1 of Section 18 apply and ii in all sub soil in such estates including rights if any in 1 mines and minerals whether being worked or not shall cease and be vested in the State of Uttar Pradesh free from all encumbrances
 580 Clause a referred to above deals with grove lands and trees separately
The grove land referred to above will be the grove land defined in section 36 of the UP Tenancy Act
Clause a also refers to the right title and interest of intermediaries in trees ceasing and vesting in the State
From among the trees such of the trees as constitute a grove have been excluded from the operation of cl
a of section 6
Therefore the excluded category of trees forming the grove cannot be considered to have vested in the State on the abolition of the estates
Section 18 which creates bhumidhari rights deals among other items with intermediary s grove
The expression intermediary s grove is defined in section 3 13 of the Abolition Act as grove land held or occupied by an intermediary as such
We do not find any material on record to draw an inference that the appellant raised any contention that the trees constituted an intermediary s grove 
From what is stated above it will be seen that the trees constituting the grove have not vested in the State and therefore they could not have formed the subject of creation of bhumidhari rights under section 18
Therefore the trees constituting the grove being the debtor s property are liable to be proceeded with in execution under section 24 of the Encumbered Estates Act
Even if it is to be held that the appellants have got bhumidhari rights over the trees constituting the grove as already held by us these rights can be proceeded with under section 24 of the Encumbered Estates Act
Therefore from either point of view the trees constituting the grove are liable to be proceeded against for realisation of the decree by the respondents
The result is the appeal fails and is dismissed with costs
VPS Appeal dismissed


Summary:
The predecessors in interest of the appellants were landlords owning an estate including agricultural land trees groves etc in UP and were heavily indebted to the respondents
Most of the debts were secured
On the application of the landlords proceedings were taken under the UP
Encumbered Estates Act 1934 and a decree was passed under section 147 of the Act in favour of the respondents in 1938
The nature and extent of property liable to attachment and sale as required by section 192b of the Act were furnished to the executing authority
By virtue of a notification under the UP Zamindari Abolition and Land Reforms Act
1950 the estate vested in the State and new rights namely bhumidhari rights in the lands in the estate were created in 1952 in favour of the appellants who were the successors in interest of the landlords
In 1959
the respondents applied under section 24 of the Encumbered Estates Act to recover the amount decreed to them by proceeding against the bhumidhari rights and trees belonging to the appellants
On the question whether 1  the bhumidhari rights and 2 the trees could be proceeded against HELD 1 Though the respondents were mortgagees their rights as such were extinguished under the Encumbered Estates Act and the decree in theft favour under the Act was only a simple money decree which was not executable except under the provisions of the Act
Under section 24 execution can be levied from any property or rights other than proprietary rights in land which are reported under section 19 as liable to be attached and sold
On the passing of the UP Abolition Act the proprietary rights of the landlords in the land vested in the State and thereafter the appellants had no proprietary rights left in them
The bhumidhari rights being new rights created for the first time in favour of the appellants under the Abolition Act are not proprietary rights
In the present case the requirements of sections 19 and 24 have been complied with even though the bhumidhari rights were not mentioned as being liable to attachment and sale because
 i under section 192b the requirement is only to report the nature and extent of the property liable to attachment and sale and not the interests or rights of the debtor in the property and ii the decree under the Encumbered Estates Act was passed in 1938 while the bhumidhari rights were created only in 1952 and hence could not be specifically mentioned in the decree
When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than the proprietary rights in land and when there is no prohibition in the Abolition Act against execution of a decree obtained under the Encumbered Estates Act against the bhumidhari rights the respondents were entitled to proceed against such rights
575 A B 577 B E G 578 AF 567 Rang Sheo Ambar Singh vs Allahabad Bank Ltd   followed
2 Unders 6a of the Abolition Act and section 36of the UP Tenancy Act 1939 the right title and interest of intermediaries in trees and grove land but not in trees constituting a grove cease and vest in the State
Since the trees constituting a grove have not vested in the State and could not have formed the subject of creation of bhumidhari rights they are the debtor s property and are liable to be proceeded against in execution under section 24 of the Encumbered Estates Act
Even if the appellants got bhumidhari rights over the trees constituting the grove they could be proceeded against because bhumidhari rights could be proceeded against in execution
580 B C E