K.A. Abdul Gafoor, J.
1. The appellants in these two appeals are members belonging to Scheduled Tribe in Kerala. Admittedly by them, the property in their possession and enjoyment had been sold in execution by a civil court. In the court sale, the property has been purchased by the first respondent. The sale has been confirmed in his favour. Later, the appellants filed an application under Rule 3(a) of the Kerala Scheduled Tribes (Restriction on Transfer of Land and Restoration of Alienated Lands) Rules, 1986 before the third respondent for restoration of the land purchased by the first respondent under court auction to the appellants. The third respondent allowed that application for restoration of the lands and directed the first respondent to hand over possession of the land purchased by him in court auction to the appellants within 30 days. The first respondent filed an appeal as provided in Section 6(5) of the Kerala Scheduled Tribes (Restriction on Transfer of Land and Restoration of Alienated Lands) Act, 1975 before the second respondent. The second respondent, after hearing the parties dismissed the appeal. Ext. P4 is the order passed by the original authority and Ext. P6 is the order passed by the appellate authority.
2. Exts. P4 and P6 were challenged by the first respondent before this court in the respective Writ Petitions. The learned Single Judge allowed the Writ Petitions quashing Exts.P4 and P6 orders taking the view that the court sale will not come under 'transfer' as defined in Section 2(g) of the Act and therefore, there was no restriction as imposed by Section 4. The learned Single Judge also found that the contention of the appellants that there was prohibition of attachment and sale of immovable properties possessed by the members of Scheduled Tribe, as per Rule 5 of the rules was also not available to the appellants, as they did not agitate that contention before the Execution Court and therefore, they were barred in pursuing that contention in terms of the principles contained in Explanation 4 to Section 11 of the Code of Civil Procedure, 1908. The learned Single Judge also relied on the decision in Velayudhan Krishnan v. Bhagavathy Padmakshy, 1992 (2) KLT 440, to hold that court sale will not come under 'transfer' as defined in the Act. It is in the above circumstances, the appellants, the contesting respondents in the Original Petition have come up with those appeals.
3. The appellants reiterated their contentions. According to them, the execution court had attached their properties in execution of a money decree. Such attachment is prohibited as per Rule 5 of the Rules which reads as follows:
5. Prohibition to attachment of immovable properties-For the execution of a money decree against a member of Scheduled Tribe, no right or interest held by him in any immovable property shall be liable to be attached or sold:
Provided that nothing contained in the above rule shall prohibit the attachment or sale of the right or interest held by any member of the Scheduled Tribe in any immovable property for the execution of a money decree for the realisation of maintenance of alimony:
Provided further that the immovable property so attached shall not be sold to any person other than a member belonging to the Scheduled Tribe.'
Velayudhan's case relied on by the learned Single Judge was not an attachment for a money decree. It was a case of mortgage where the prohibition contained in Rule 5 did not apply. So Velayudhan's case ought not to have been relied on by the learned Single Judge to quash Exts. P4 and P6. It is further contended that the Act and the Rules are beneficial legislations in favour of the members of the Scheduled Tribe that the land in their possession and enjoyment shall not be taken over on any means including by a transfer by others. The provisions in the Act and the Rules therefore apply to the court decrees as well, when the sale is in execution of a money decree other than for maintenance and alimony. Therefore, they contend that the impugned judgment shall be set aside, the appeals shall be allowed.
4. It is contended by the respondents that the restriction in the Acts applied only against transfers as defined in Section 2(g) of the Act, It contemplates a voluntary transfer by one person to another. It does not cover a court sale. So the restriction contained in Section 4 does not have any application at all. Even if the appellants did have a contention that prohibition against attachment as provided for in Rule 5 was available, it was a contention which ought to have been urged before the execution court or in an appeal against the order of the execution court. It is not a contention to be taken before the authorities created under the Act or in an original petition, to nullify the order of a civil court. So, such a contention was not available to them. It is further contended that Rule 5 is beyond the rule making power of the Government as contained in Section 22 of the Act, which did not enable the executive Government to exercise the power of subordinate legislation to bring about a prohibition on attachment by courts.
5. The rules have been promulgated under Section 22 of the Act. Therefore, we wanted to learn what Section 22 was. We referred to the manuals compiled by different authors. But could not see Sections 21 and 22 in those manuals. We had to verify the gazette to find them out. In the above circumstances, we issued notices to all the publishers and editors to show cause why truncated portions of the Act were being published causing inconvenience to the bar and the bench. Even several editions of the same author contained such a truncated portions alone. There was not even a single manual publishing the entire text of the Act. We, therefore, issued notice to the Bar Council of Kerala and the Bar Associations also in this regard. We have heard the counsel engaged by the parties to whom notices were sent.
6. The contention of the respective publishers that they have followed the publication of the Act in the Kerala Law Times cannot be accepted. Every editor and publisher is bound to refer to the official text of the Act published in the Government Gazette and to reprint it. To publish truncated forms of enactments really affects the administration of justice. It causes difficulties to the advocates and the judges and even to the public. Therefore, it has become necessary to issue certain directions in that regard as we do in this judgment.
7. Coming to the point agitated in these appeals, we have to hold that attachment and sale of properties by court will not come within the definition of 'transfer' as contained in Section 2(g) of the Act. Section 2(g) of the Act reads as follows:
'2(g) 'transfer' in relation to immovable property, means an act by which immovable property is conveyed by any documentary or oral transaction, whether by way of mortgage with or without possession, lease, sale, gift, or exchange, or in any other manner, not being a testamentary disposition; and includes a charge, 'vilapenayam', 'unduruthi', contact relating to immovable property, mortgage, pledge or hypothecation of crops or standing trees on payment of consideration or otherwise, voluntary surrender and abandonment'.
The definition of 'transfer' in relation to immovable properties in Section 2(g) is a transfer by a wilful act of the owner of the property and not by a compulsory act of an adjudicating authority bringing the property to sale.
8 . The restriction contained in Section 4 will apply only in respect of the voluntary transfers and not to compelling sale at the interference of a court. To that extent, we have to follow the dictum in Velayudhan's case though it is in a context of sale of an immovable property in execution of the mortgage decree. The word 'transfer' under Section 2(g) postulate a voluntary act by one with another. It is a transaction by one person with some other person. It is a deal or an act concluded between persons by means of reciprocal actions. It will not cover attachment and sale by Court as in this case.
9. There is contention centered around Rule 5 as extracted above. True, the sale was in execution of a money decree. If there was prohibition of attachment as provided in Rule 5, it was a matter to be contended and urged before the Court which passed the attachment order. If, in spite of such a contention, the court had passed an attachment order, such an order of attachment should have been taken further before the higher court. They did not do so. Whether the attachment effected by the civil Court was proper or not a matter to be considered by the statutory authority under the Act nor to be considered in an Original Petition under Article 226 of the Constitution of India. Thus, even if such a contention based on Rule 5 is available, it ought to have been urged in the execution court or in the appellate court of that execution court and not before the authorities under the Act or in the writ Court. Such contention cannot be heard from the mouth of the appellants in these proceedings.
10. As already indicated above, we direct that hereafter every editor and publisher of enactments, rules and notifications and other statutory orders, shall publish the text as printed in the official gazette alone. This shall be taken as a direction and every violation when noticed shall be dealt with appropriately.
So, the appeals have to fail. They are accordingly dismissed.