JUDGMENT - DESHPANDE M.S., J.:---This second appeal is by the original defendants Nos. 3 and 4 against the decree passed by the two courts below in respect of field Survey No. 46/1, 23 acres 32 gunthas situated at Mouza Donad Buzruk.

2. Field Survey No. 46/1 originally belonged to defendants Nos. 1 and 2. One Ramnaresh obtained a decree against them in Regular Civil Suit No. 178-A of 1958 on 3rd March, 1959. The field was auctioned in execution of that decree in Regular Darkhast No. 363 of 1969 and in that auction sale the plaintiff was declared successful bidder. The sale was confirmed on 25-2-1972 and the plaintiff obtained possession of the land on 27-4-1972. During the pendency of the execution proceedings the land revenue accumulated and for the recovery of arrears of land revenue, field Survey No. 46/1 came to be auctioned. The third defendant Narayan purchased the land on 29th April, 1970. It may be mentioned here that a charge in respect of the decretal amount was created on the field Survey No. 46/1 and was registered on 11-10-1961.

3. The main points for decision before the Courts below were whether the sale of the field Survey No. 46/1 in favour of the defendant No. 3 Narayan for arrears of land revenue could take precedence over the charge created upon the land in execution of the decree obtained in Regular Civil Suit No. 178-A of 1958 and whether the sale in favour of the defendant No. 3 in view of the creation of the charge prior to the sale dated 29th April, 1970 in his favour would have precedence because of the principle of lis pendens. The trial Court held that in view of the language of section 169 of the Maharashtra Land Revenue Code, the third defendant could not have taken the land free from encumbrances and that the sale in his favour would be hit by the doctrine of lis pendens because of the pre-existing charge. In the appeal taken by defendants Nos. 3 and 4 against the decree passed against them by the trial Court, the only question raised was whether the third defendant was a bona fide purchaser for value without notice and that point was answered by the learned Extra Assistant Judge in the negative and he affirmed the decree for possession passed by the trial Court.

4. The only substantial question of law which arises for consideration is whether the auction sale in favour of the third defendant held for recovery of arrears of land revenue would take precedence over the Court sale in favour of the plaintiff and whether the plaintiff was entitled to a decree for possession.

5. My attention was drawn by the learned Counsel for the parties to the provisions of section 138 of the C.P. Land Revenue Act, and the analogous provisions to be found in section 131 of the Berar Land Revenue Code. Under section 138(1) of the C.P. Land Revenue Act, unless the Deputy Commissioner in ordering the sale otherwise directs, the purchaser of any estate, mahal, share or land sold for arrears of land-revenue due in respect thereof, shall acquire it free of all encumbrances imposed on it, and all grants and contracts made in respect of it by any person other than the purchaser. Under section 149(2) of the Berar Land Revenue Code, every sale of immovable property under section 141(c) shall transfer the holding free of all encumbrances imposed on it, and all grants and contracts made in respect of it, by any person other than the purchaser. Section 141(c) thereof has reference to attachment and sale of the holding on which the arrear is due and the recovery of an arrear of land revenue. The provisions of the C.P. Land Revenue Act and Berar Land Revenue Code were repealed by the provisions of the M.P. Land Revenue Code, 1954. But even under section 140(1) thereof subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, unless the Collector in ordering the sale otherwise directs, the purchaser of the land sold for arrears of land-revenue due in respect thereof, shall acquire it fr

Click Here to Read the rest of this document