Nehal Khan vs Felu Dome and Others

Agarwala, J.—This appeal is by defendant 1 and arises out of a suit relating to land which belonged to the ancestor of the plaintiff and the pro forma defendants. At a private partition, it was allotted to the grandfather of the plaintiffs. In the Record of Rights published in 1925, it was recorded in the names of the plaintiffs and the pro forma defendants.

The landlord, defendants, sued for the rent of the holding impleading all the persons whose names were recorded in the Record of Rights except plaintiff 2, and obtained a decree for Rs. 37-4-0. In execution of this decree the holding was put up for sale and was purchased by the appellant for Rs. 45 on 31st July 1934. Plaintiff 2 then applied to set aside the sale. The application purported to be u/s 213, Chota Nagpur Tenancy Act and was rejected.

The present suit was instituted by the plaintiffs on 10th September 1937, for a declaration of their title to the land and confirmation of possession on the ground that the decree and sale in execution of it were null and void as plaintiff 2 was not impleaded in the suit. It has been found that the appellant, the auction purchaser at the execution sale, obtained delivery of possession. The plaintiffs have, therefore, been given the declaration which they sought and decree for recovery of possession, the appropriate court-fees having been paid on the plaint.

The first question that arises is whether the plaintiffs'' suit is barred by limitation. It is contended on behalf of the appellant that the suit is governed by Article 12, Limitation Act and is, therefore, barred. That article applies inter alia to a suit to set aside a sale in pursuance of a decree or order of a Collector or other officer of revenue, and provides a period of limitation of one year from the date of the confirmation of the sale. If the sale was a valid sale, there is no doubt that this article applies and the suit is barred by limitation; but if the sale is a nullity there is no occasion to set it aside and a suit for a mere declaration that the plaintiffs'' interests are not affected by it, is not governed by Article 12: Moti Lal v. Karrab-ul-Din (98) 25 Cal. 179. Reference is made to the observations by Ross J. to the contrary in Baldeo Das v. Nilmaninath AIR 1928 Pat. 615, Fazl Ali J. does not appear to agree with these observations and they were unnecessary for the purpose of deciding that case. As the matter is governed by the decision of the Privy Council, the suit must be held to be within time if the sale was a nullity.

It was also contended that the present suit, if decreed, affects the order for sale passed by the Deputy Commissioner u/s 208(1) in execution of the decree and that as Section 208 falls in chap. 16, Section 258 is a bar to the suit. Section 208 does not authorize the sale of a holding in execution of a decree obtained against some only of the tenants of the holding and an order directing the sale of the holding in execution of such a decree is void: see the decisions in AIR 1933 122 (Privy Council) and Jyoti Prasad v. Tara Sankar AIR 1933 Pat. 537.

The next contention is that as plaintiff 2 applied to set aside the sale u/s 213, and his application was rejected, a bar to the maintainability of the suit is created by the operation of Section 258. So far as it is material to the present case, that section provides that "no suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, any decision, order or decree of any Deputy Commissioner or Revenue Officer in any suit, application, or proceeding under Chapter 16 of the Act, except on the ground of fraud or want of jurisdiction, and that every such decision, order or decree shall have the force and effect of a decree of a civil Court in a suit between the parties, and, subject to the provisions of the Act relating to appeals, shall be final."

If the decision of the Deputy Commissioner on the application of plaintiff 2 was a decision u/s 213, (which falls within chap. 16), the present suit was clearly barred and since the decision has the effect of a decree of a civil Court it would be conclusive between the parties; but Section 213, merely relates to an application to the Deputy Commissioner to set aside an execution sale on the ground of material irregularity or fraud in publishing or conducting it. The section does not apply where the sale is challenged not on the ground of any irregularity or fraud in publishing or conducting it but on the ground that it is void for want of jurisdiction in the executing Court. No application is needed to set aside a null sale.

It has been held in Jyoti Prasad v. Tara Sankar AIR 1933 Pat. 537, that when a decree is effective against only a part of the tenancy interest a sale held in execution of it is entirely without jurisdiction and does not affect the interest of any of the judgment-debtors.

In the present ease as plaintiff 2 was not impleaded in the suit for rent a part of the tenancy interest was not represented in the suit and the decree did not affect the interest of plaintiff 2. Accordingly, the sale held in execution of that decree was a nullity. The next contention on behalf of the appellant is that at least the right, title and interest of the tenants other than plaintiff 2 passed by the execution sale.

In Jyoti Prasad v. Tara Sankar AIR 1933 Pat. 537, it was held that where a sale u/s 208 is entirely without jurisdiction it does not affect the interest of any of the judgment-debtors even though the sale of their interest u/s 210(b) might be valid.

The last contention on behalf of the appellant was that some of the tenants who were impleaded as defendants in the rent suit have not joined in the present suit and the suit is, therefore, bad for misjoinder of parties. The Courts below have held that the holding now belongs to the plaintiffs exclusively. That decision, of course, is not binding against persons who are not parties to the present litigation. So far as the plaintiffs and the auction purchaser are concerned, however, the suit cannot be defeated merely on the ground that some persons who might possibly have an interest in the holding are not parties.

In the result the appeal fails and is dismissed with costs.