Y. Prasad Rao, (died) by LRs. vs P. Venkat Raju

L. Narasimha Reddy, J.—The defendants in O.S. No. 185 of 1982 on the file of District Munsif, Bodhan, filed this second appeal. During the pendency of the second appeal, both of them died and their legal representatives are brought on record. The suit was filed by the sole respondent herein for the reliefs of:

(a) cancellation of the order of confirmation of sale, dated 6-2-1978 passed in E.P. No. 18 of 1974 in O.S. No. 7 of 1972;

(b) for recovery of possession of the property sold thereunder;

(c) for recovery of mesne profits at the rate of Rs. 300/- per year from the date of suit; and for a decree for Rs. 3,000/- towards damages.

On an earlier occasion, the 1st appellant filed O.S. No. 7 of 1972 against the respondent for recovery of a sum of Rs. 2,724/- in the Court of District Munsif, Bodhan. The suit was decreed on 30-12-1973. After the decree became final, he filed E.P. No. 18 of 1974 and brought the house of the respondent to sale. The 2nd appellant became the auction purchaser. The efforts made by the respondent, to get the sale set aside, by filing several applications, did not fructify. Thereafter, the respondent filed O.S. No. 185 of 1982, for the reliefs, mentioned above. He pleaded that he is a small farmer as defined under A.P. Agricultural Indebtedness (Relief) Act, 1977 (for short "the Act 7 of 1977") and that the sale of his property in the execution of the decree in O.S. No. 7 of 1972 is void and illegal.

The appellants filed a written statement stating that a separate suit for setting aside the auction sale, or for resolution of any dispute, as regards execution of a decree is barred u/s 47 and Rule 92(3) of Order XXI of C.P.C. They pleaded that the suit is barred by limitation, apart from being not maintainable.

The trial Court decreed the suit through its judgment, dated 14-12-1989. Aggrieved thereby, the appellants filed A.S. No. 6 of 1990 in the Court of Subordinate Judge, Bodhan. The appeal was dismissed on 24-1-1997. Hence, this second appeal.

Sri P.S. Murthy, earned Counsel for the appellants, submits that the suit was barred u/s 47 and Rule 92(3) of Order XXI of C.P.C, and still the same was decreed by the Courts below. He contends that the suit was also barred by limitation inasmuch as it was filed more than three years from the date of confirmation of sale. Another contention urged on behalf of the appellants is that the auction purchaser cannot be deprived of the purchased property, even if the sale suffers from legal or factual infirmity.

Sri P. Nageshwara Sree, earned Counsel for the respondent, submits that the second appeal cannot be maintained against concurrent findings on facts recorded by the Courts below. He submits that the bar contained in Section 47 of Order XXI of C.P.C, does not operate when the sale is contrary to specific provisions of the Act, which has overriding effect. He further contends that the last of the petitions filed by the respondent for setting aside the sale, came to be disposed only on 14-7-1981 and that the present suit filed on 4-8-1981, and thereby, cannot be said that the suit is barred by limitation.

The respondent filed the present suit, to set at naught, the sale of his property, affected in execution of the decree in O.S. No. 7 of 1972.

On the basis of the pleadings before it, the trial Court, framed the following issues for consideration:

Whether the plaintiff is an agricultural labourer and entitled for the benefit of Act 7 of 1977?

Whether the suit is barred by res judicata?

Whether the suit is barred by limitation?

Whether the order of confirmation of sale, dated 6-2-1978, passed in E.P. No. 18 of 1974 is to be set aside and consequently the possession of the suit house to be delivered to the plaintiff?

Whether the plaintiff is entitled for the damages and mesne profits?

To prove his case, the respondent examined PWs. 1 and 2 and filed Exs.A-1 to A-12. On behalf of the defendants, DWs. 1 to 3 were examined and Exs.B-1 to B-9 were filed.

The suit was decreed and in the appeal preferred by the defendants, the lower appellate Court framed the following points for consideration:

Whether the suit of the respondent was barred by limitation?

Whether the suit is barred by the principle of res judicata?

Whether the respondent was a small farmer and was entitled to the benefits under the Ordinance of the Act of 1977 by the dates of their coming into force and whether lower Court was wrong in holding Act 7/77 is not applicable to the first appellant and whether the lower Court was right in setting aside the confirmation of sale made in E.P. No. 18/74 and passing the decree accordingly? and answered all of them in favour of the respondent.

In the second appeal filed u/s 100 of C.P.C., this Court cannot re-examine the findings on questions of fact.

On hearing the earned Counsel for the parties, this Court is of the view that the following questions of law arise for consideration:

(a) Whether a separate suit for the relief of setting aside the order of confirmation of sale in execution of a decree can be maintained?

(b) Whether the suit for the relief of setting aside the order of confirmation of execution of sale is governed by Article 59 or 113 of the Schedule to the Limitation Act, 1963?

(c) Whether the provisions of the Act 7 of 1977 can be invoked to set aside the sale in execution proceedings?

The 1st appellant filed O.S. No. 7 of 1972 against the respondent for recovery of a sum of Rs. 2,724/-. The suit was decreed and he filed E.P. No. 18 of 1974 for execution of the decree. A house of the respondent was brought to sale on 20-6-1975. Thereafter, the respondent filed E.A. No. 67 of 1975, to set aside the sale, alleging certain irregularities. That application was dismissed. In the meanwhile, the Government of Andhra Pradesh promulgated Ordinance 8 of 1975, imposing moratorium of execution of decrees against small farmers. The plaintiff filed E.A. No. 100 of 1975 to avail the benefit under the said Ordinance, and it was dismissed. Few months thereafter, the Ordinance came to be enacted as Act 7 of 1977. The plaintiff filed E.A. No. 20 of 1977 by invoking the provisions of the Act. The application was not pursued further and it was closed on 6-2-1978. On the next day, the sale was confirmed.

The respondent filed E.A. No. 38 of 1978 u/s 47 of C.P.C., once again, invoking the provisions of the Act 7 of 1977. The E.A. was dismissed on 14-7-1981.

From the above narration, it is clear that the plaintiff exhausted all his remedies u/s 47 and the relevant Rules of Order XXI of C.P.C., to get the sale as well as the order of confirmation, set aside. The present suit filed by the plaintiff was examined on the touchstone of res judicata, by the trial Court as well the lower Appellate Court. An important aspect, namely the effect of Section 47 and Rule 92(3) of Order XXI of CPC was omitted. Section 47 of C.P.C. imposes a clear bar on filing of independent suit for resolution of any dispute that arises in the course of execution of a decree, be it, as regards the sale of an item of property or confirmation of the sale in execution. The plaintiff has, in fact, availed the remedy u/s 47 of C.P.C. by filing E.A. No. 38 of 1978. Therefore, the present suit was barred. If the plaintiff was aggrieved by the order passed in E.A., he ought to have carried the matter further, by way of appeal or revision.

Apart from the general bar u/s 47, C.P.C, imposes a specific bar on filing of suits, to challenge orders of confirmation of sale. Rule 92 of Order XXI of C.P.C, prescribes the manner in which the execution of sale can be confirmed. Sub-rule (3) thereof, prohibits filing of separate suits, for this purpose. It reads as under:

No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

In the instant case, the plaintiff filed more applications than one, for setting aside the sale as well as the order of confirmation, in E.P. No. 18 of 1974 itself. Some of them are referable to Rule 92 of Order XXI. Even assuming that he did not avail the remedy thereunder, filing of a separate suit is barred under Rule 92(3) of Order XXI of C.P.C. Therefore, the present suit in O.S. No. 185 of 1982 filed by the plaintiff ought not to have been entertained.

The question of limitation would also arise for consideration assuming that the suit is not barred. The Courts below proceeded as though the provision, which covers the situation, is Article 59 of the Limitation Act, 1963 (for short "the Act").

Article 59 of the Act reads as under:

This Article comes into play when a suit is filed for cancellation of an instrument or for setting aside the decree or for rescission of a contract. Admittedly, the present suit is filed for setting aside the order of confirmation of sale. It does not fit into Article 59 of the Schedule of the Act. Two other Articles come into play. One is Article 100 of the Act, which prescribes limitation for instituting a suit for the relief of an alteration or setting aside any decision or order of a Civil Court in any proceedings other than a suit. The limitation for such suits is one year, from the date of such order. The other provision is Article 13 of the Act, which is residuary in nature. The limitation prescribed under it is three years. The date of order of confirmation was 7-2-1978. The present suit was filed on 4-8-1981. Therefore the suit was clearly barred by limitation.

Now remains the last question. The Act 7 of 1977 was brought as a measure of social reform, to protect the interest of small farmers in the context of indebtedness. Section 3 thereof, is wide in its application, and it prohibits the execution of a decree passed against a person, who answers the description of a small farmer. The endorsement of such decrees can be stalled, at any stage. However, once the sale takes place, and the execution is concluded, the Act does not apply. Its provisions cannot be invoked to set aside a sale, which has already taken place, on the ground that the judgment debtor is a small farmer.

For the foregoing reasons, this Court is of the view that the Courts below have decided the suit and the appeal contrary to the settled principles of law and they deserve to be set aside.

The second appeal is allowed and the judgment and decree passed by the trial Court in O.S. No. 185 of 1982 and confirmed by the appellate Court in A.S. No. 6 of 1990 are set aside. There shall be no order as to costs.