1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANTABAD SECOND APPEAL NO. 129 OF 1990 Bhagubai wife of Ratan Jadhav. ..Appellant (orig. plaintiff.) V E R S U S 1. Gopalkrishna Satyanarayan Talnikar. 2. Kishan Yamaji Bhojane. ...Respondents. (orig. Defendants.) CORAM : P. R BORKAR, J. DATE : 24 TH JULY, 2009. ORAL JUDGMENT :- 1. This is an appeal preferred by the original plaintiff being aggrieved by the judgment and decree passed by the learned Additional District Judge, Jalna in Regular Civil Appeal No. 95 of 1981 on 18-08-1889 whereby the decree dismissing RCS No. 63 of 1975 passed by the Civil Judge Junior Division, Ambad on 31.08.1979 was set aside and the suit was decreed with declarations that 4 Acres 15 gunthas land out of S.No.864/1 situated at Jamkhed is not liable for attachment in Regular Darkhast No. 34 of 1967 and that the attachment dated 25 th September, 1974 of the land is also not valid attachment. The suit was dismissed so far as declaration of 2 plaintiff’s title to the extent of three acres, against defendant No.1 in particular. This appeal is mainly directed against refusal to give declaration regarding the plaintiff’s title to 3 acres land. 2. Facts giving rise to this appeal may be stated thus :- The plaintiff-appellant purchased three acres land out of survey no. 864/1 situated at Jamkhed, Tq. Ambad, District Jalna on 22.11.1973 from the respondent No.2. A sale deed was executed to that effect. On 25.04.1974, the appellant-plaintiff entered into an agreement of sale with the respondent No.2 in respect of purchase of 4 acres 15 gunthas of same survey number 864/1 for consideration of Rs.6,000/-. On that day, Rs. 4,000/- were paid as earnest money. Possession was delivered to plaintiff. Thus it is the case of the plaintiff that on the basis of sale deed and agreement of sale, he was in possession of 7 acres 15 gunthas of land. The respondent No.1 obtained a decree against respondent No.2 and has filed Regular Darkhast No.34/1967 and sought attachment of Survey No. 864/1 situated at Jamkhed. The said order of attachment was challenged by the plaintiff-appellant by filing suit RCS No. 63/1974. He sought declaration that he is the owner of the suit property and that the respondent No.1 has no right 3 to attach the suit property in his possession. Trial Court decreed the suit holding that the plaintiff was the owner of the property and the property in his possession was not liable for attachment. It is this decree which is challenged in appeal by the respondent No.1 Gopal Krishna who was original defendant No.1 (Decree Holder). In appeal, the Appellate Court in paragraph No.7 observed that so far as three acres acres part of the suit land is concerned, it is said to be sold by defendant No.2 (respondent No.2) to the plaintiff-appellant on 22.11.1973. The respondent No.1 (original defendant No. 1) challenged the transaction as bogus entered in relation to money lending, but that point was not pressed. However, same sale was challenged for the first time on the ground that it violated the provisions of the Bombay Execution of Decrees (Temporary Postponement) Act, 1959. In paragraph No.8 the District court observed that said Act come into force on 5 th October 1973 and was in force till 14 th February, 1974 and therefore, the sale deed dated 22.11.1973 is void and therefore he is refused to give declaration of title in favour of the plaintiff-appellant. 3. Section 1 (3) of the Bombay Execution of Decrees (Temporary Postponement) Act, 1959 lays down that Part II shall come into force in such 4 area, being an area whee, on account of failure of crops, famine, fire, drought, flood or such other natural calamities, the State Government has granted remission or suspension of land revenue and besides made a declaration of scarcity or of famine conditions, and on such date as the Collector may by notification in the official Gazette specify, and different dates may be specified for different areas for this purpose. Relevant provisions which was referred to by the Learned Additional District Judge is Section 7 of part II of and it is as follows :- “Every transfer of immovable property or of any interest therein made in any area where this part is in force, by an agriculturist who is a judgment-debtor of any decree referred to in sub-section (1) of section 3, during the period this part remains in force in that area shall be void as against the holder of such decree.” 4. Learned Advocate Shri Bora rightly argued that no notification as required by Section 1 (3) was produced on record. Issue regarding validity of the sale deed in his favour by the defendant No.2 was not challenged under provisions of the Bombay Execution of Decrees (Temporary Postponement) Act, 1959 by making necessary pleadings in the written statement. No as such declaration was sought even by way of counter claim. 5 In the circumstances, this issue should not have been considered for the first time in appeal, particularly in absence of notification as required by section 1 (3) merely relying on some orders passed in the Darkhast. 5- In this view of the matter, this appeal is partly allowed and the part of the judgment and decree of the Additional District Judge dismissing the suit in respect of declaration of plaintiff’s title to 3 acres land purchased by him by sale deed dated 22.11.1973 is concerned, is hereby set aside and decree of the trial court to that extent is restored. Appeal is accordingly allowed. ( P. R. BORKAR, J. ) **** aaa/sa129.90.odt