Akhechand and another vs Motilal and another

Surajbhan, J.

This is an appeal u/s 100 of the Code of Civil Procedure, by the auction-purchaser and Mst. Dhirajbai Decree Holder against the reversing judgment and decree, passed by the learned Additional District Judge, Durg, in civil appeal No. 74-A of 64, whereby, the learned Judge decreed the suit of the Plaintiffs-Respondents, and declared that the auction sale conducted regarding their two holdings of unirrigated lands in execution proceeding of Civil Suit No. 90-A of 54, was illegal and without jurisdiction of the civil Court, and the Respondents were, the Bhumiswamis of the suit land and they be put in possession. The Plaintiffs-Respondents were also allowed costs throughout.

The facts in brief, giving rise to this second appeal were, that the Appellant No. 2, obtained a money decree against the Respondents in civil suit No. 90-A of 1954, from the Court of the Civil Judge, Class II, Bemetara, and in execution of that decree, the two holdings of unirrigated lands, measuring 8.38 acres, and 3.30 acres separately assessed to land revenue, were attached on 23-12-1960, and the auction sale was held on 12-9-61, and the sale was confirmed on 5-11-62. The Appellant No. 1 is the auction purchaser. The Respondents preferred an objection to the sale, under Order 21, Rule 90 of the Code of Civil Procedure, on 31-10-64, contending that the sale of the property in question was illegal and void, u/s 165(7) of the Madhya Pradesh Land Revenue Code, 1959, as each of the holding was less than 10 acres. This application was dismissed. Thereupon the Respondents filed a civil suit, No. 65-A of 1963, on 11-9-63, and sought a declaration as aforesaid, but ultimately on 26-6-64, the present suit was treated as an application u/s 47 of the Code of Civil Procedure.

The learned Civil Judge dismissed the suit of the Respondents and they preferred an appeal, and it was allowed by the learned Additional District Judge as aforesaid, and hence this second appeal. The learned Additional District Judge, in support of his finding, relied on the authority reported in Merla Ramanna Vs. Nallaparaju and Others, .

Two questions arise for decision in this appeal, and the first is, when the property is attached in execution proceedings and the judgment-debtor has an objection to raise on the ground that the property is not liable to attachment and sale, is he entitled to wait until the sale has taken place and then move for setting aside the same on the ground that the Court had no jurisdiction to sell the property, and the second question is, if the first question is. answered in the negative, whether the principle of constructive res judicata would come into play u/s 11 of the Code of Civil Procedure.

Shri V.S. Pandit, learned Counsel for the Appellants, has contended before me that the learned Judge has fallen into an error in coming to the conclusion that after the confirmation of the sale in the instant case, the Respondents had a right to file an application u/s 47 of the Code of CPC and get a declaration that the property in question was neither attachable nor saleable in the execution of the decree, and he cited in support, a ruling in Janak Raj Vs. Gurdial Singh and Another, , Kashiram Ajitsingh and Ors. v. Metal Trading Co., and Anr. 1968 M P L J 201, and Merla Ramanna v. Nallaparaju and Ors. (supra).

Shri S. Awasthi, the learned Counsel for the Respondents, on the other hand, urged, that Order 21, Rule 90 of the Code of CPC relates to an application for setting aside the sale on the ground of material irregularity or fraud in publishing or conducting the sale, and even if the sale has become absolute, vide Rule 92 of Order 21 of the Code, still the judgment-debtors have a right to challenge the sale by an application u/s 47 of the Code in case of sale which is void, as in the instant case, and such application will be governed by Article 181, (replaced by Article 137 of the new Act), of the Limitation Act. He has also relied on the rulings in Merla Ramanna v. Nallaparaju and Ors. (supra), Maroti Vithoba v. Kisanlal Sheonarain (Decree-Holder-Auction Purchaser) 1938 N L J 389 : A I R 1938 Nag. 558 and Ithoba v. Bhagchand 1964 MPLJ Note 221: (L.P.A No. 9 of 1962 decided on the 12th April 1963), as also Ahmed Hafiz Khan v. Mohammad Hasan Khan 1963 MPLJ 660.

In order to appreciate the contentions raised before me by both the parties, it would be proper to refer to some of the relevant provisions of the Code of Civil Procedure. Order 21, Rule 54 of the Code of CPC prescribes the method when immovable property has to be attached in the execution of a decree. According to this rule, the judgment-debtor is prohibited from transferring or charging the property in question in any way. Order 21, Rule 66 deals with the proclamation of sale by public auction, and such proclamation is drawn up after notice to the decree-holder as well as to the judgment-debtor specifying fairly and accurately as far as is possible the date mentioned in the section. Order 21, Rule 61 of the Code deals with die time of sale and Order 21, Rule 89 deals with an application to set aside the sale on deposit. Order 21, Rule 90 deals with an application for setting aside the sale effected in the execution of a decree, either by the decree-holder or any person entitled to rateable distribution of the assets or whose interests are affected by the sale on the ground of material irregularity or fraud in publishing or conducting the sale, and such an application, according to the Madhya Pradesh amendment, has to be made before the commencement of the sale. According to Order 21, Rule 92, where no application is made under Rule 89 or 90 or Rule 91, or an application when made is disallowed, the Court shall make an order confirming the sale, and thereupon, the sale shall become absolute and Order 21, Rule 94 deals with the certificate of purchase to the purchaser regarding the sale of the property.

It is true that objection regarding the attachment and sale of the property is not covered under Rule 90, of Order 21 of the Code as it does not relate to either material irregularity in publishing or conducting the sale. It is well settled that an objection with regard to the saleability of the property is made by an application u/s 47 of the Code of Civil Procedure.

Now we come to the question as to when this application is required to be made. If an application is made by a party to the suit to recover properties which had been taken delivery of under a void execution sale, the time will run from the date of dispossession and it is three years under Article 181 of the Limitation Act. This question has been decided by a ruling of the Supreme Court in Ramanna v. Nallaparaju (supra). But then the question is, whether the sale in the instant case was void ab initio, and if not, whether the judgment-debtors were entitled by law to file an application u/s 47 of the Code of CPC after the sale had been confirmed. In Ramanna v. Nallaparaju (supra) the decree under execution authorised only the sale of the mortgage rights of Aschutarama Raju in Ex. A and not the lands which were the subject matter of that mortgage, and their Lordships held that the Respondents in this case were entitled to apply to the Court for delivery of possession of the properties wrongly sold through the process of Court and delivered to the Appellant, and such an application would be governed by Article 181 of the Limitation Act. In paragraph 11 of the judgment, their Lordships further observed that an application by a party to the suit to recover possession of the properties which had been taken delivery of under a void execution sale, would be in time under Article 181, if it was filed within 3 years of the dispossession.

Section 165(7) of the Madhya Pradesh Land Revenue Code, 1959, says as follows:

165 (7). Notwithstanding anything contained in Sub-section (1) or in any other law for the time being in force-

(a) only that part of a holding of a Bhumiswami shall be liable to attachment or sale in execution of any decree or order as is in excess of five acres of irrigated or ten acres of unirrigated land;

(According to this section, only that part of a holding of a Bhumiswami is liable to attachment or sale in execution of any decree or order as is in excess of 5 acres of irrigated or 10 acres of unirrigated land. It means that the minimum holding as mentioned in this section is neither attachable nor saleable in the execution of a decree or order, but an excess to that only is saleable. It is, therefore, clear that a Court is not inherently debarred from attaching or selling the property of a Bhumiswami, provided the minimum holding is not touched. It means, that if the holding of a Bhumiswami, whether irrigated or unirrigated, is attached, it is for the judgment-debtor to move the Court and raise an objection that Section 165(7) of the Land Revenue Code, 1959, would be a bar to that attachment and sale and if he has not applied for the same, I am of the view, that after the confirmation of the sale, he cannot be heard to say that he is entitled to file an application u/s 47 of the Code of CPC to set aside the sale when rights of a third person have come into being. Section 65 of the Code says that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. The scheme of the Code of Civil Procedure, as aforesaid, shows that objections to the saleability of the property etc. should be first disposed of and after the sale, the objection should be confined to only the irregularities or fraud in publishing or conducting the sale, and the provisions of the Rule 92 of Order 21 make it obligatory for the Court to confirm the sale in the absence of such objections or if such objections are dismissed.

Shri Awasthi has not been able to cite before me any authority to show that Section 47 of the Code should be independently considered even after the sale is made absolute. In cases, where the executing Court lacks inherent jurisdiction and the sale is void, the authority of the Supreme Court in Ramanna v. Nallaparaju (supra) is there, but in cases of attachment or sale governed by the provisions of Section 165(7) of the Land Revenue Code, 1959, it cannot be said that the Court lacks inherent jurisdiction to attach and sell the property. In such a case, as I have said above, the judgment-debtor has to show that he does not possess more than the minimum prescribed in the provision. In the instant case, the judgment-debtor had not objected to the sale of the property before its confirmation, and the executing Court is not lacking in inherent jurisdiction to decide the question, and in this view of the matter, I hold that the Respondents could not file an application u/s 47 of the Code of Civil Procedure. A similar question was referred to the Full Bench of the Lahore High Court in AIR 1942 153 (Lahore) , and it was held therein that the judgment-debtor, if he seeks the exemption to the property attached, must apply before the confirmation of the sale.

Similar question arose u/s 60 of the Code, and it was held that the judgment-debtor must object before the confirmation of sale. (See Shaikh Ahmed Shaikh Mohmad Patil v. Devram Kalyanji and Co. ILR 1957 Bom. 403; Hiralal and Anr. v. Mohanlal ILR 1960 Rag. 510; Balmakund Vs. Firm Pirthiraj Ganesh Das, , and Raman Lal, died and after him Raman Lal, died and after him Kanti Chandra Vs. Shanti Lal and Others, .

In my view, looking to all these authorities the learned Judge had erred in finding that in the instant case the Respondents were in time in filing the application u/s 47 of the Code after confirmation of the sale, and they having not availed of that opportunity in time, the principle of constructive res judicata would apply. The rulings cited by Shri Awasthi are not applicable to the facts of the present case. In Maroti Vithoba v. Kisanlal Sheonarain (supra), the objection as regards the saleability of the property was taken before the confirmation of sale. Similar was the case in Ahmad Hafiz Khan v. Mohammad Hasan Khan (supra) and Ithoba v. Bhagchand (cited supra).

In the view of the matter that I have taken, that the Respondents were not allowed by law to file an application u/s 47 of the Code after the confirmation of the sale, and they having not raised the objection regarding the saleability of the property in the execution proceedings before the confirmation of the sale, they are hit by the principle of constructive res judicata, and this principle is well settled. If any authority is needed, see Ushadevi Balwant Mantri Vs. Devidas Shridhar Joshi, ; Rahim Ahmad Khan v. Jagannath Shrikisan and Ors. 1961 MPLJ 148 , Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, ; Baijnath Prasad Sah Vs. Ramphal Sahni and Another, and Balbahadarsingh Amar Singh v. Walaiti Ram Kalu Ram and Anr. AIR 1954 Pep. 55.

In the result, therefore, this appeal is allowed; the judgment and decree of the first appellate Court is hereby set aside, and the application filed by the Respondents u/s 47 of the Code of CPC was rightly dismissed by the learned Civil Judge. The Appellants shall be entitled to costs throughout.