Bhagwat Narain Singh vs Mahadeo Prasad Bhagat and Another

Fazl Ali, J.—This is a plaintiffs second appeal arising out of a suit instituted by him for a declaration that the sale of a certain mauza belonging to him in execution of a decree was void and for recovery of possession of that village. The facts of the case are briefly these:

The plaintiff''s uncle Maharaja Nam Narain Singh had made khorposh grant of several villages including mauza Bandi to his (the plaintiff''s) father Udit Narain Singh. After the death of Udit Narain Singn, his four sons, including the plaintiff, applied for protection of the estate under the Chota Nagpur Encumbered Estates Act and the estate was given such protection by an order dated 31st March 1896. In 1915 the estate was released to the plaintiff and his three brothers subject to the restrictions imposed by Section 12A, Chota Nagpur Encumbered Estates Act, as to future alienations of the whole or any part of the estate. The release was notified on 3rd February 1915 and in the notification all the sons of Udit Narain, including the plaintiff, were described as the holders of the estate. It is common ground that the estate was impartible and that its devolution was governed by the rule of primogeniture; that in accordance with this rule the eldest brother of the plaintiff whose name was Bharath Narain Singh got possession of it, when it was released and though he allotted certain villages by way of khorposh to his younger brothers, he retained possession of most of the villages for himself including village Bandi. In 1924 Bharath died without leaving any issue and was succeeded by the plaintiff according to the custom prevailing in the family. In 1928 one Kali Prasad, who had obtained a decree against the plaintiff for costs and damages, put up village Bandi to auction in execution of the decree and the village was purchased by defendant 1 and the father-in-law of defendant 2 who got delivery of possession of it through Court in due course. The present suit was instituted by the plaintiff on 14th January 1937 to recover possession of Bandi. The plaintiff attacked the sale of the village to the defendants on the ground that it was held in contravention of Section 12A, Chota Nagpur Encumbered Estates Act, which enacts that when the possession and enjoyment of property is restored to the person who was the holder of such property when the application u/s 2 was made, such person shall not be competent without the previous sanction of the Commissioner to alienate such property or any part thereof in any way and every alienation made or attempted in contravention of this provision shall be void.

It appears that in execution proceedings while the sale of mauza Bandi was proceeding the plaintiff had objected to the sale u/s 47, Civil P.C., on the ground that the property could not be sold in view of the provisions of Section 12A. The executing Court proceeded with the sale but passed an order to the effect that the objection would be decided on a particular date. On that date the plaintiff did not appear and so his objection was dismissed for default and the sale was confirmed.

The defendants 1 and 2 contested the suit on two main grounds: (1) that inasmuch as the plaintiff''s family was governed by the rule of primogeniture in the matter of succession to the estate, the holder of the estate at the time its management was taken over by the Chota Nagpur Encumbered Estates department, was Udit Narain''s eldest son Bharath and the other brothers including Bhagwat, the plaintiff, were not the holders of the estate and, therefore, Section 12A did not apply to the present case and (2) that since the objection, preferred by the plaintiff u/s 47, Civil P.C., on the ground that the property could not be sold without the sanction of the Commissioner, had been dismissed for default, the order of dismissal was a bar to the present suit. The trial Court decreed the suit, but his decision has been reversed on appeal by the learned Additional Judicial Commissioner of Chota Nagpur. Hence this second appeal by the plaintiff.

The learned Judicial Commissioner has upheld both the contentions put forward on behalf of the defendants and while dealing with the second contention he has observed as follows:

Regarding the second ground the learned Subordinate Judge observed that the rule of res judicata has no application as the question whether Section 12A was applicable or not was not decided in that case. I do not agree with this view. The objection was filed by the plaintiff in the execution proceedings u/s 47 to the effect that the loan having been taken without the sanction of the Commissioner, the property could not be sold u/s 12A, Encumbered Estates Act. The executing Court ordered that this point would be looked into before confirmation of the sale but on that date the plaintiff did not appear, the objection was dismissed for default and the sale was confirmed. In my opinion, the raising of the same question in a fresh suit is barred by res judicata. My view is supported by a decision of the Patna High Court reported in Mahadeo Prasad Bhagat Vs. Bhagwat Narain Singh, . It was a case between these very parties in which a similar question was raised and the High Court held that as the point was raised, although riot decided, in the objection petition u/s 47, the point was res judicata by reason of Expl. 4 to Section 11, Civil P. C.

The learned advocate for the appellant contended that the learned Additional Judicial Commissioner has taken an erroneous view of law both in holding that the plaintiff was not a holder of the estate and that the present suit was barred by res judicata and also contended that the case relied on by the learned Additional Judicial Commissioner has no application to the present case. I will not, however, deal with all the arguments put forward by the learned advocate, because I think that having regard to the provisions of Section 47, Civil P.C., the present suit cannot be maintained by the plaintiff. This view is supported by a number of decisions, but I shall refer to some of them only.

In Gokulsingh Bhikaram v. Kisansingh Guru Laxmangiri 34 Bom. 546 , it was held that though an auction purchaser at a Court sale in execution of a decree was not a party to the suit in which the decree was passed and though he was not a representative of either the decree-holder or the judgment-debtor for the purpose of Section 244 (Section 47) yet if the question raised by the judgment-debtor as to the legality of the Court sale was virtually one between the parties to the suit, that is to say, between the decree-holder and the judgment-debtor and if in the decision and result of that question the purchaser was interested, the judgment-debtor ought not to be allowed to attack the sale in a suit. It was also pointed out in that case that the test in such cases is whether the ground upon which the Court sale is attacked as conferring no title upon the auction purchaser affects the parties to the suit and could have as between them been raised and determined u/s 244 and whether the auction purchaser though not a party to that suit is a party interested in the result. Again in Nadamuni Narayana v. Veerabhadra Pillai 34 Mab. 417 , it was held that the true ground for the prohibition in Section 244 is not that that section bars the suit as the auction purchaser is the representative of the decree-holder, but that Section 244 being a bar to setting aside the sale except by proceedings between the parties, the suit against the purchaser is not maintainable until it is so set aside. A similar view was also taken in Mohan Singh Chowdhuri and Others Vs. Panchanan Sadhukhan and Others, as will appear from the head note of the case which runs as follows:

The words ''all questions arising between the parties to the suit'' in Section 47 do not mean all questions which were actually raised in execution proceedings. The words mean that the questions must be such as would relate to or affect the rights of parties to the suit.

The intention underlying Section 47 and Order 21, is that all questions arising between the parties to the suit or their representatives in interest relating to the execution, discharge or satisfaction of the decree should be determined in the proceedings in which the decree was passed. If a party to the suit or his representatives desire to raise an issue which falls within Section 47, such as whether the sale ought to be set aside on the ground of irregularity or fraud as provided in Order 21, Rule 90, or whether the property sold was liable to attachment in execution of the decree, they must do so in the course of the execution proceedings as provided in Code and not otherwise. A stranger auction purchaser after the sale has become absolute and a sale certificate has been granted, ought not to be left in doubt as to whether the parties or their representatives intend in the future to attack the sale in further or other proceedings.

In like manner the parties or their representatives are also precluded from raising such issues, as ought to have been raised in the execution proceedings, by way of defence in any proceedings other than those for which provision is made in the Code.

The view which is expressed in these cases is also supported by the following observations made by the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal 19 Cal. 683 .

Mr. Doyne, who appeared for the appellant admitted that the question at issue was one ''relating to the execution, discharge or satisfaction of the decree.'' But he argued with much ingenuity that the suit was not barred by the provisions of Section 244 because the question concerned the auction purchasers as much as any body, and therefore, as he contended it could not be properly described as a quest ion ''arising between the parties to the suit in which the decree was passed.'' At the same time he admitted that he was unable to produce any authority for his contention, and he also admitted that it was the common practice to make auction purchaser a party to an application for setting aside an execution sale.

As the point appeared to be one of some importance, and the respondents were not represented at the Bar, their Lordships thought it desirable, before giving judgment, to examine the reported cases which have arisen u/s 244, Civil P.C. An examination of those cases, of which it is only necessary to mention Sakharam Govind v. Damodar Akharan 9 Bom. 468 and Kuriyali v. Mayan 7 Mad. 255 has satisfied their Lordships that the decision appealed from is in accordance with the construction which the Courts in India have uniformly placed on the section in question.

Now, it seems to me that the question as to whether the disputed mouza could be alienated in spite of the provision of Section 12A was essentially a question to be decided between the judgment-debtor and the decree-holder in the execution proceedings and the judgment-debtor cannot in view of the authorities cited above raise the question in a separate suit even though the suit is brought not against the decree-holder but against the auction purchaser and even though it may be assumed that the auction purchaser is not a representative of either the decree-holder or the judgment-debtor.

The learned advocate appearing for the appellant tried to distinguish the above cases in the following manner. According to him it would have been necessary for the plaintiff to attack the sale in the execution proceedings only if it was voidable in which case it being essentially a question which should have been raised in the execution proceedings it could not be made the subject-matter of a suit as against an auction purchaser though he was not a party to the decree. But he also contended that in the present case the sale having been held in contravention of Section 12A, Chota Nagpur Encumbered Estates Act, was void, that therefore, it was not necessary for the plaintiff to take any steps u/s 47 for setting it aside and that he was entitled to ignore it and ask the Court to make a declaration that the sale was a nullity and to restore the property to the plaintiff who still remained the rightful owner thereof.

At first sight there might appear to be some substance in this contention but in my judgment to accept this contention would be to restrict unduly the scope of Section 47, Civil P.C. This view may be supported by refering to the Full Bench decision of the Allahabad High Court in Basti Ram v. Fattu (''86) 8 All. 146 in that case a judgment-debtor had sued the auction purchaser to recover certain property which was a tenant''s right in land and was by law not saleable in execution of a decree. But it was held that the question involved in the suit was one of the nature referred to in Section 244 as determinable only by the order of the Court executing the decree and that the suit was, therefore, not maintainable. It is true that in that case the decree-holder himself was the purchaser of the property and the judgment-debtor had unsuccessfully raised a similar, objection in the execution proceedings. But it is to be noted that the decision of the case did not rest either upon a ground that the decree-holder himself was the auction purchaser or on the ground that the judgment-debtor''s objection to the property being not saleable had been negatived in the execution proceedings. The case was decided upon the principle that the provisions of Section 244, Civil P.C., prohibit not only a suit between parties and their representatives, but also a suit by a party or his representatives against a purchaser at a sale in execution of the decree, the object of which is to determine a question which properly arises between the parties or their representatives, and relates to the execution, discharge, or satisfaction of the decree. This will appear from the following observations made in the judgment in that case.

If they are questions of this nature and which properly arise between the parties or their representatives, they must be determined by order of the Court executing the decree, and not by separate suit; and the provision disallowing a separate suit to determine these questions applies not only to prohibit a suit between parties and their representatives, but also a suit by a party or his representatives against an auction purchaser in execution of the decree, the object of which is to determine a question which properly arises between parties or their representatives, and relates to the execution, discharge, or satisfaction of the decree.

If the question be of this nature, it is one which by Section 244 must be determined by order of the Court executing the decree, and not by separate suit; and it is immaterial whether the party did or did not raise it prior to the auction sale at the time of execution. If he did not, he lost the remedy which the Legislature has provided.

That this was the intention of the Legislature, and that a question of this kind cannot be raised by a party to the suit in which the decree was passed against a purchaser in execution of that decree seems evident from Section 316, which provides that, as regards the parties to the suit and persons claiming through or under them the title to the property sold shall vest in the purchaser from the date of the sale-certificate.

Moreover, in the present case also the objection that the sale was in contravention of Section 12 A, Chota Nagpur Encumbered Estates Act had been raised by the judgment-debtor against decree-holder, but notwithstanding it the property was sold. If the judgment-debtor could not in these circumstances bring a suit on the ground mentioned above against the decree-holder in the event of his having purchased the property, he cannot also bring the suit as against a third party auction purchaser.

In my opinion the present suit is not maintainable and has been rightly dismissed by the learned Additional Judicial Commissioner. I would accordingly dismiss this appeal with costs.

Meredith, J.

I agree.