Sunil Kumar and Another vs Ram Ditta Mal and Another

B.D. Agrawal, J.—This is plaintiffs appeal.

Dispute is with respect to a house. The house belonged to one Shiv Lal. The actual occupation was of the tenants-defendants 1 and 2. Municipal Board, Muzaffarnagar, within the territorial jurisdiction of which the house is situated instituted original suit 185 of 1965 in the Court of the Munsif, Muzaffarnagar, against Shiv Lal the owner for the recovery of Rs. 276-25 as arrears of house tax for the period 1962-63 to 1964-65 at the rate of Rs. 90/- per annum plus notice expenses contending also that the tax is a first charge on the house and praying that in case the amount is not paid within the period , specified the recovery be made by sale of the property. The suit was decreed ex parte on July 30, 1965. The decree-holder Municipal Board put the decree to execution on April 27, 1968 which was registered as Execution Case No. 82 of 1968 in the Munsif''s Court. In execution the house was put to auction sale on 17-11-1969 and this was purchased by defendant 3 (son of defendant 1) for a sum of Rs. 16,000/ -. The sale was confirmed on 28-1-1970 followed by the issue of the certificate of sale dated April 23. 1970.

Meanwhile Shiv Lal died on March 7, 1968 leaving a registered will dated 16-1-1968 registered on 17th. Thereunder he bequeathed his property to the grandsons (the appellants! who are the sons of Shiam Lal alias Shiam Sunder Lal. The son was excluded by the testator. The legatees brought original Suit No. 417 of 1972 on 15-11-1972 giving rise to this appeal contending oh various grounds that the decree passed in original suit No. 185 of 1965 dated July 30, 1965 was beyond jurisdiction of the Munsifs Court and is a nullity having been obtained fraudulently, ft is pleaded also that the execution of that decree cannot be given recognition and the sale made in pursuance thereof on 17-11-1969 is to be considered void. The relief claimed is possession of the house; cancellation of the auction sale and damages for use and occupation. In defence it is asserted that the Munsif had jurisdiction in the matter there being charge over the property and the relief for sale of the property being also sought. Shiv Lal was duly served with summons in that suit under registered cover. In the course of the execution of the decree his legal representative, namely; Shiam Lal alias Shiam Sunder Lal was brought on the record. Notice was issued and served upon him under Order 21, Rule 66, Civil P.C. but there was no objection raised; the sale took place according to law and there was no collusion between Shiam Lal and the auction purchaser. The certificate of sale was duly issued and has attained finality.

The trial Court found that the original suit No. 185 of 1965 could lie in the Munsifs Court as contended by the contesting defendants. The suit brought by the appellants giving rise to this appeal is bad on account of there being no objection filed by Shiam Lal impleaded as defendant-respondent 4 under Order XXI, Rule 89/90 or Section 47 of the Code. The sale, it has been held, proceeded according to law and there is no proof that Shiam Lal acted in collusion with the auction purchaser. On these findings the suit was dismissed on June 2, 1975.

Sri G.P. Bhargava, learned counsel for the appellant with his usual lucidity raised a number of grounds to assail the decree under appeal. This was countered by Sri H.S. Nigam appearing for the contesting respondent under his brief but pointed reply.

Contention of Sri Bhargava in the first place is that the suit by the Municipal Board for recovery of a sum of Rs. 276/- and odd could lie in the Court of the Small Causes and not before the Munsif on the regular side. It is not in dispute that where there is lack of inherent jurisdiction shown at any stage the decree is rendered a nullity and it may be questioned on that ground including in the execution proceedings. The answer to the appellant''s submission is contained, however, in the averment made in the plaint of original suit No. 185 of 1965 itself. Para 7 thereof recites that the house-tax constitutes the first charge on the house in question and that in case the amount is not paid after the decree, there be realisation made of the same by sale of this property. This precisely is the rule contained in Section 177, Municipalities Act. From Article 11 of the Second Schedule in the Provincial Small Cause Courts Act, it will appear that a suit for the determination or enforcement of any other right to or interest in Immovable property lies outside the purview of the Court of Small Causes. The suit in question was for the enforcement of the charge existing against this property under the statute. A suit for the recovery of a sum of money due on account of the house tax is in other words, a suit to enforce the payment of money charged upon the Immovable property. Faced with this aspect of the matter Sri Bhargava urged that in that event there should have been a preliminary decree passed under Order XXXIV, Rule 4, Civil PC That is the provision applicable to a case of mortgage created inter vivos and not a charge which comes into being in view of a statutory provision. The argument that the judgment debtor was not accorded time for the payment of the decretal amount lacks merit otherwise also considering that though the decree was passed on July 30 1965 it was not put to execution until the expiry of nearly three years and the sale took place even long thereafter on 17-11-1969 As will presently appear both subsequent to the auction sale and prior to it the persons interested in the property had sufficient opportunity to pay up the decretal amount and save the house from sale but this was no availed.

It was next argued for the appellants that the summons in original suit No 185 of 1965 was not served upon Shiv Lal The submission advanced is that the particulars given was not correct and hence there could be no presumption raised of the service by post u/s 27 U.P General Clauses Act or Section 114, Evidence Act This contention has no legs to stand Certified copy of the order-sheet of that suit placed on the record reveals that the summons issued for 7th July 1965 to Shiv Lal aforesaid was served upon him personally under registered cover There is the note made by the trial Court dt. 7th July 1965 to this effect I am unable to agree with the contention then advanced for the appellants that the respondents ought to have examined the Handwriting Expert to show that the signature on the acknowledgment returned after service of the registered cover tallied with the admitted signature of Shiv Lal The burden to establish that there was not due service of the summons upon Shiv Lal lay plainly on the plaintiffs-appellants. In case they had doubt in this respect, it was up to them to have obtained the Expert''s opinion or give such other evidence as is relevant. It is incorrect as well to maintain that the address was incorrect or that on this account it may not be assumed that the service will have been duly made. Admittedly Shiv Lal son of Rurhamal in question resides in Ludhiana In the plaint of original suit 185 of 1965 the address given is resident of Sabji Mandi Ludhiana The father''s name is mentioned as well. The argument put forth for the appellant is that Shiv Lal resided in Arya Mohalla. The postal letter dt. 26-10-l962 from defendant 3 to Shiv Lal the veracity whereof is not challenged specifies "Aryagah near Sabji Mandi" It was not disputed for the appellant at any stage that this letter did not reach Shiv Lal, in fact it has been produced on the record from their side. The letter came to be written during the ordinary course. It is suggestive clearly of Arya Mohalia being situate near the Sabji Mandi and having regard to the ordinary course of business contemplated u/s 14 Evidence Act there appears no difficulty in believing to my mind that the service could be effected by the postman upon Shiv Lal even though the registered cover did not as well make a mention of Arya Mohalla If is worthy of note as Sri Nigam rightly points out that there is no specific averment for the plaintiffs in the plaint giving use to this appeal that this was not the correct address nor has P W. Umesh kumar the plaintiff or any other witness from their side stated that Arya Mohalla is not situate near Sabji Mandi. There is no basis, consequently) to reach the finding that the service of summons was not effected upon Shiv Lal in the ordinary course.

Learned counsel argued then that Shiv Lal had died on 7-3-1968. The execution commenced on April 27 1968. This was incompetent due to the sole judgment-debtor having died earlier. There could be no valid attachment made on June 1. 1968. The application for substitution of the legal representative was made by the decree-holder on 15-11-l968 which was allowed by the execution Court on April 26, 1969. In the absence of the judgment-debtor there could be no service made of the prohibitory order contemplated under Order XXI, Rule 54, Civil P.C. for purposes of effecting the attachment. Accepting as thus contended that there could be no attachment made under the law in view of the death of the sole judgment-debtor, the question remains whether the auction sale is vitiated on this account. To that the answer in my view is in the negative. It is not a case where there may have been any transfer effected of the property to some person prior to the auction sale impugned. There could be valid sale made despite there being no prior attachment of the property. In case Sheodhyan v. Bholanath, ILR (1899) 21 All 311 a Division Bench of this Court laid down that an attachment is a step towards the sale of the judgment-debtor''s property, the object being that the property is placed under the control of the Court with a view to prevent the judgment-debtor from alienating it and preventing its sale in execution of the decree. The main object of the proclamation of the order of attachment is to give publicity to the fact that the sale of the particular property attached is in contemplation and to warn all persons against the taking of transfer of it from the judgment-debtor to the prejudice of the rights of the decree-holder. The absence of attachment is consequently of no material significance in such a situation. Sri Bhargava cites this in all fairness though he referred as well to the earlier decision in case Mahadeo Dubey v. Bholanath DichitB) which was considered by the Division Bench but.,ILR (1883) 5 AH 86 (F distinguished in face of the Privy Council decision reported in (1894) ILR 21 Cal 60. There was also reference made with approval to the decision of this Court in Ganga Prasad v. Jag Lal Rai. (1889) ILR 11 All 333.

Exception is taken then on the appellants'' behalf to the substitution directed in the course of the execution proceedings on April 26,1969 by the execution Court. As I mentioned above, Shiv Lal had executed a Will dt. 16-1-1968 whereby he bequeathed the property to the appellants, his grandsons and excluded Shiam Lal, respondent 1. The execution of this Will is not disputed before me from the side of the respondent. The objection raised for the appellants is that in face of this Will, Shiam Lal could not be the legal representative of Shiv Lal deceased. It may not be overlooked in this connection that being the son of the deceased, Shiam Lal could be taken very well to represent the estate. Admittedly there was no probate pertained on the Will by or on behalf of the appellants. The decree-holder may not be attributed knowledge of the Will executed by Shiv Lal. Shiam Lal was admittedly the natural guardian of his sons, the appellants both of whom were minors at the relevant time. There is no lack of bona fides attributable to the Municipal Board the decree-holder in seeking to implead Shiarn Lal as the legal representative of Shiv Lal deceased upon the death of the latter coming to notice. Keeping in view also the provision made in Order XXL Rule 12 of the Code, the proceedings in execution are not vitiated on this account.

The next argument of the appellants before me has been that the Municipal Board sought to have realised the amount representing the arrears of the house tax from the occupiers. In view of Section 149, Municipalities Act, it is urged, the actual occupiers of the house are primarily liable for the payment of these taxes. It is open to the occupiers tenants to deduct the amount paid by them from the rent payable to the landlord or to gel themselves reimbursed by the landlord. This also is the proposition affirmed in the cases of Basant Lal Katyal Vs. Boora Ram Kapoor and Others, and Azharuddin Vs. Syed Zahid Husain, . From this it may not be claimed to follow, however, that the local authority is debarred from suing the house owner for the recovery of the taxes. There is averment made in the pleadings to the effect that prior to the institution of the suit there had been notice given to the house owner and also warrant issued of the amount remained unpaid still. Because of the primary liabilities of the occupiers, the limited responsibility of the house owner is not taken away. We are, however, not to sit in appeal on merits over the decision recorded in original suit No. 185 of 1965 by the Court of competent jurisdiction. The limited question for decision in this appeal arising out of the subsequent suit brought by the appellants is whether there is jurisdictional or procedural infirmity amounting to a fraudulent or collusive transaction so as to vitiate the decree dt. July 30, 1965 passed in that earlier suit.

Sri Bhargava argued then that Shiam Lal-respondent 4 was in collusion with the auction purchaser. I have scrutinised the evidence but find no substance in, this contention. It is true that there was no love lost between Shiv Lal the father on the one hand and his son Shiam Lal on the other as is reflected from the Will dt. 16-l-1968 executed by the former and also the newspaper publication made by him on 17-1-1986 referred to far the appellants. There is reference made also by the learned counsel in this connection to certain correspondence which Shiv Lal had with respondent 3 a tenant in respect of this house which suggests that at times Shiam Lal was interested in asserting his title over the house to the exclusion of the father. This being the position, no question would arise of Shiam Lal being in collusion with the tenants in the house. In the natural course his keenness would be to derive the maximum profit out of the property when his father had died leaving the grandsons who were minors. It is argued that Shiam Lal have been desirous of ready cash. Even so a sale by private negotiations may have perhaps fetched a higher amount than that obtained by the auction sale. The decretal amount was petty after all and it does not seem in the absence of anything exceptional that Shiam Lal would have acted in collusion with the tenants thereby permitting the property to skip out of his hands. The appellants had not produced Shiam Lal, defendant 4 in the witness box. The averment in the pleadings in this case are akin substantially to those of the case where an alienation made by the father of the joint Hindu family is challenged on the ground that the transferor is given to immoral habits. P. W. Wazir Chand is an Advocate, who figures as one of the attesting witnesses to the Will made by Shiv Lal. He has testified in clear terms that expense for his coming to the Court to appear as a witness was borne and paid by Shiam Lal and also that Shiam Lal came to the Court in his company and was there on the date when his evidence was recorded and also on the date preceding. It is not difficult to discern that Shiam Lal has been interested in pulling the strings from behind and there is no force in contending on the contrary that he acted in collusion with the tenants. The trial Court may not be said to have erred in attaching weight to the testimony of P. W. Wazir Chand.

The contention raised also is that it was open to the defendant Shiv Lal not to file the written statement or to appear on the date fixed for this purpose and hence the suit could not be directed to proceed ex parte on this account. From the order sheet it will appear that the summons issued to him and served personally under registered cover was for filing of the written statement on July 7, 1965 and for the issues being framed on July 11, 1965. July 11, 1965 was thus the first date of hearing. Since HO written statement came to be filed on the date fixed, the trial Court directed that the case be put up for being proceeded with ex parte on July 30. 1965. The material thing to be noticed is that the date given was beyond July 11. 1965. In Ram Rakhan and Another Vs. Mahant Govind Das and Another, . relied for the appellant, the distinguishing feature was that the date given for the written statement in the summons was 25th February and the issues were to be framed on 5th March. The defendants did not appear on 25th February and no written statement was filed. Without waiting for the date of issues to reach, the Court recorded evidence ex parte on 26th February, and passed the decree on the basis thereof on 28th February upon these facts this Court held that Order VIII Rule 1, C.P.C. was not attracted since there could be no decree made ex parte without the date fixed for the first hearing being reached. Since in the present case the decree was not passed until July 30, while the date for issue was July 11, there is no illegality arisen on this basis either.

For the respondents Sri Nigam urged that it was open to the appellants to have raised the objection under Order XXI. Rule 89/90 or Section 47 of the Code of the suit at their instance did not lie. In Janak Raj Vs. Gurdial Singh and Another, the principle laid down is that if a sale in execution of an ex parte decree is made the judgment-debtor is not entitled to get back the property even if the decree is reversed before confirmation of the sale. This has been reiterated in case Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, wherein it was observed : -

"Ordinarily, if the auction purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have assured himself by appropriate enquiry, the Court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction sale has been held is set aside. This proceeds on the footing that the equity in favour of the stranger should be protected and the situation is occasionally reached on account of default on the part of the judgment-debtor not obtaining stay of the execution of the decree during the pendency of the appeal.

But what happens if the auction-purchaser is the decree-holder himself. In our opinion, the situation would materially alter and this decree-holder-auction-purchaser should not be entitled to any protection. At any rate, when he proceeds with the execution he is aware of "the fact that an appeal against the original decree is pending. He is aware of the fact that the resultant situation may emerge where the appeal may be allowed and the decree which he seeks to execute may be set aside. He cannot force the pace by executing the decree taking advantage of the economic disability of a judgment-debtor in a money decree and make the situation irreversible to the utter disadvantage of the judgment debtor who wins the battle and loses the war. Therefore, where the auction-purchaser is none other than the decree-holder who by pointing out that there is no bidder at the auction, for a nominal sum purchases the property, to wit, in this case for a final decree of Rs. 500/- Motilal Purchased the property for Rs, 300/- an atrocious situation, and yet by a technicality he wants to protect himself. To such an auction purchaser who is not a stranger and who is none other than the decree-holder the Court should not lend its assistance."

The auction purchaser in the present case, it will be recalled, is not the decree holder but a third person though a tenant in the premises.

Sri Bhargava drew my attention to Ram Chandra Arya Vs. Man Singh and Another, in which Janak Raj Vs. Gurdial Singh and Another, is not dissented but has been distinguished. It is laid down in Ram Chandra Arya that the auction sale is void if it is held in execution of a decree which itself is void or a nullity and in such a case there is no bar arising due to Order XXI Rule 89 or 90. Civil P.C. for that matter. In that case the decree was passed against a lunatic without the guardian being appointed. This was in violation of Order XXXII. Rule 15, C.P.C. and hence the decree and also the execution proceedings taken in pursuance thereof were void. Karamat Ali and Another Vs. Mt. Sogra, affirms this principle in relation to the scope of Section 47 of the Code where the decree the execution is fraudulent or collusive. Keeping in view the nature of the allegations contained in the plaint giving rise to this appeal in which there is attack made against the decree and the execution proceedings on ground substantially that these were void or fraudulent it may not be correct to say that the suit is not maintainable. The suit could be filed by the plaintiff where this kind of averment is raised but then it fails due to those averments being not substantiated upon merit on the evidence and the circumstances of the case.

Lastly the submission for the appellants is that in the interest of social justice the Court be inclined to set aside the auction sale since the property of substantial value has been sold for a sum of Rs. 16,000/-only and the interest of the appellants be protected on the condition of their being required to refund the amount of the sale consideration. I am afraid on the facts hereof this argument may not be entertained. A vested right has accrued to the auction purchaser. The proper course in the situation for the appellants the persons interested would have clearly been to come up with the decretal amount under Order 21, Rule 89 of the Code within the time fixed for the purpose or to seek the setting aside of the sale if it could be shown that there is substantial injury caused due to irregularity in publication or conduct thereof. These are the statutory provisions. The provisions are explicit and unambiguous. The question involved in the present case is not even of an interpretation of those provisions but of giving effect to the same. Where the statutory ingredient is clear as in this case and a legal right has accrued to the auction purchaser by virtue of the purchase made in due course upon the payment of the bid amount in the entirety, it may not be said to be left open to the Court to reverse the process at the instance of the other side claiming title to the property. The title of the appellants to the property is lost already as a result of the auction sale which was confirmed in due course followed by the issue of the certificate of sale.

| 17. For the discussion made hereinabove the appeal, in my opinion, lacks merit and is accordingly dismissed. In the circumstances of the case the costs of the appeal shall, however, be borne by the parties.