Ram Ranbijaya Prasad Singh vs Sukar Ahir

Manohar Lall, J.—This appeal has been referred to a Special Bench for a decision of the question whether a violation of the provisions of Section 162A, Bihar Tenancy Act, renders the sale void or voidable.

The facts are these. The appellant obtained a rent decree against the respondent and proceeded to execute it in execution case No 103 of 1943 on 23-2 1943. On 10-3-1943 a notice was issued under Order 21, Rule 22, Civil P.C. The order for attachment was issued on 12-4-1943, after the Court was satisfied that notice under Order 21, Rule 22 had been served. The attachment itself was served on 3l-519i3. On 10-6 1943, the sale proclamation was issued fixing 18-8-1913, for sale, but the sale was adjourned to 19th August. On that day the property of the judgment-debtor was sold and purchased by the decree holder for Rs. 115-13-6. The sale proclamation shows that a number of plots appertaining to khata No. 30 were advertised for sale with a total area of 3.03 acres. All these plots have been sold for Rs. 115-13-6. The decretal amount was Rs. 112-9 0 and the execution cost was Rs. 3-4-6. The bid of the decree-holder for Rs. 115-13 6 was accepted by the Court. Before the sale was confirmed one Ramchandra Prasad who was not a party to the proceedings filed a petition that he should be allowed to deposit the decretal amount with costs. On hearing the pleaders the Court passed this order on 18-9-1943:

The applicant is not a party to the ease. The decree was a rent decree, but it is said that the execution is a money execution. Clearly, therefore, the interest, if any, of the applicant will not be affected by the sale. There is noting satisfactory to show that the applicant has at present any interest in the land. The petition is objected to by the pleader for the decree-holder and the petition is rejected and the prayer disallowed.

On 20-9-1943, as thirty days had expired and no objection was raised, the sale was confirmed. On 4-51944, the judgment-debtor made an application that the sale should be set aside. The only ground for objection which was pressed before the Court on 9-11-1914, was that as the sale had taken place of a portion of the plot, the sale was void and must be set aside. The Court on-examining the draft sale certificate came to the conclusion that it was clear that portions of plots had been sold and as this was against the mandatory provisions of Section 162A, Bihar Tenancy Act, the sale was void. It was contended on behalf of the decree-holder before him that as the sale was a money sale and as the rent decree was in respect of a part of the holding, Section 162A, Bihar Tenancy Act, had no application. But this contention was overruled by the learned Munsif in these words:

But on an examination of this provision of Chap. 13A, Bihar Tenancy Act, it will appear that Section 162A, Bihar Tenancy Act will apply in execution of a decree passed for arrears of rent irrespective of the fact whether the decree is technically a rent decree or a money decree. That being so, the sale is void and it must be set aside even at the instance of the Court.

The learned Subordinate Judge in appeal, came to the same conclusion. As to the contention whether the decree in execution was a rent decree or a money decree he observed:

The dakhaldehani would show that the judgment-debtor purchased 5.12 acres of land in execution of the previous rent decree of the appellant. The decree of the present execution case will show that the appellant brought the rent suit in respect of the same area of 5.12 acres of land. Therefore it is abundantly clear that 5.12 acres of land constitutes the present holding and the decree passed in respect of arrears of this holding is a rent decree. Under the circumstance Section 162A, Bihar Tenancy Act, would apply. I may also assume an alternative case. Supposing for a moment for the sake of argument that the decree under execution case has the force of a money decree, even then in my Opinion, Chap. 13A, Bihar Tenancy Act, which contains Section 162A will apply. The whole Chap. 13A applies to decrees for arrears of rent. The present decree under execution was obtained for arrears of rent. It has not been said in this chapter that it will only apply to decree for arrears of rent, which may have the force of a rent decree and not the decree for arrears of rent which may have the force of a money decree. In this view of the case also Section 162A, Bihar Tenancy Act, which is a mandatory provision will apply.

Hence the second appeal to this Court.

In my opinion the Courts below were in error in thinking that this execution was not a money execution. I have already shown that the property sought to be sold was only 3.03 acres and not the whole of the land for which the rent decree was obtained. It is not a case where the Court directed the sale of a part of the holding within the terms of Section 162A. (Moreover notices were issued under Order 21, B. 22, Civil P.C. and the decree-holder expressly informed the Court on the objection raised by the third party that the execution was a money execution.

Such being the position, the question arises whether the provisions of Section 162 A are applicable.

The relevant section is Section 158AA which provides that a rent decree may be realised by the attachment and sale of the property of the judgment-debtor, both movable and immovable. Therefore, the decree-holder need not necessarily proceed against the holding itself. But where he does proceed against, the holding, the Court has to issue a special notice as provided by Section 158B(2).

Then we come to Section 162A which is the enabling section and gives the Court the power to sell the holding when the application mentioned in Section 158AA has been made. Upon its clear wording, Section 162A relates to all applications mentioned in Section 158AA, that is to say it covers not only decrees executed as rent decrees but also decrees for rent executed as money decrees, because both these types of executions fall within the purview of Section 158AA. The last proviso, which runs

Provided again that nothing in this section shall be deemed to authorise the sale of a portion of a plot comprised in a holding,

means that there is no enabling provision authorising the Court to sell a portion of a plot whatever be the type of execution, so long as the decree was obtained in respect of arrears of rent.

We have recently held in another case that a sale held in contravention of this proviso is wholly void, in contradistinction to a sale held in contravention of the provisions of Section 168 A, which is only voidable. The distinction rests upon the view that the provisions of Section 163A are for the benefit of the judgment-debtor, and what is for his benefit he can waive, and what can be waived does not go to the root of jurisdiction. But the last proviso to Section 162A is a general provision enacted as a matter of general policy to prevent excessive sub-division of holdings and, therefore, cannot be waived. Moreover, it is Section 162A which gives the Court jurisdiction to sell, and if nothing in the section authorises the sale of a portion of a plot then the Court can have no jurisdiction to sell it. It is only an accident that the Court which executes rent decrees is the ordinary civil Court unlike the execution of rent decrees under the Chota Nagpur Tenancy Act. For these reasons, I am of opinion that the question of jurisdiction must be determined under the provisions of the Tenancy Act itself, and the general law giving jurisdiction to Courts for the execution of decrees contained in the CPC cannot be invoked.

In the present case what has happened is that eight plots were sold, six were sold in whole and two plots 165 and 358 were sold in portion. With regard to these two plots, therefore, the sale was wholly void, and the judgment debtor was entitled to a declaration that in regard to those two plots no title passed by the sale.

It does not follow that the sale of the other six plots must be set aside. With regard to them the sale is only voidable.

Mr. Nawal Kishore Prasad No. 2 then argues that the case should be remanded for a finding as to whether the judgment-debtor had knowledge of the sale and whether the sale was not held fraudulently by keeping the judgment-debtor in ignorance of all the execution processes.

It is unfortunate that the trial Court proceeded to dispose of the case on a preliminary point and did not decide all the issues of fact which arose between the parties. As has been repeatedly pointed out by this Court following the observations of their Lordships of the Judicial Committee in Tarakant Banerjee v. Puddomoney Dossee (1863) 10 M.I.A. 476, Mahomed Solaiman v. Kumar Birendra Chandra Singh AIR 1922 P.C. 403 and AIR 1933 33 (Privy Council) , the Courts of fact must decide all the issues of fact which arise between the parties so that if the appellate Court takes a different view, the parties are saved from further harassment. In the present case if the learned Munsif had disposed of all the issues of fact, this litigation would have been concluded and the parties would not have been harassed by a remand which has to be made in order to decide the other questions, namely, the date of knowledge of the judgment, debtor and the alleged fraudulent conduct of the decree-holders. The executing Court will now dispose of the case as speedily as he can after due notice to the parties.

The result is that the appeal is dismissed so far as plots 165 and 358 are concerned. So far as the remaining 6 plots are concerned, the case is remanded to the learned Munsif for re-hearing the matter under Order 21, Rule 90, Civil P.C. The orders of the Courts below to that extent are set aside as indicated above.

Costs of this Court and of the Courts below already incurred will abide the result and will be disposed of by the learned Munsif.

Meredith, J.

I agree.

Shearer, J.

I agree.