V. NATH, J.:–Heard Mr. Bishwanath Choudhary, the learned counsel appearing on behalf of the appellant and also Mr. Bhanu Pratap Singh, the learned counsel for the respondent.

2. The present second appeal has been filed by the plaintiff (now deceased through her L.R.) against the judgment and decree dated 27.05.1988 passed by Sub Judge I, Aurangabad in T.A.No. 44/76 upholding the dismissal of the suit.

3. Shorn of unnecessary details, the plaintiff has filed the suit mainly for declaring her as Raiyat of the suit land and for declaration that the defendant has acquired no right, title or interest on the basis of auction sale which is illegal and void, and for recovery of possession. The plaintiff’s case is that the lands in dispute had been recorded in equal shares in the names of Laxman Dushadh and Lachhu Dushadh who were in possession as separate members of the family. The plaintiff has claimed to have inherited the 8 annas share therein as deceased son’s wife of Lachhu Dushadh. It is the case of the plaintiff that the defendant, claiming to have purchased the suit land through auction sale in Execution Case No. 152/58 on 23.11.61 and to have obtained delivery of possession on the same date i.e. 23.11.61, dispossessed her on 25.11.61 from the suit land on the strength of the delivery of possession. It is the further case of the plaintiff that she is an illiterate village woman and the defendant, by perpetrating fraud, succeeded in dispossessing her on the pretext that all her properties had been auction sold. However, after some years the plaintiff could learn that her lands had not been sold as alleged by the defendant and the defendant had come in wrongful possession of her lands. Further, the plaintiff has also stated that she belonged to a backward class and the court had no jurisdiction to sell her land in execution and any such sale in execution case was void and illegal. It has also been alleged that the auction sale is illegal in for want of notice and also under the provisions of Money Lenders Act as well as due to misdescription of the sold land.

4. Per contra, the defendant’s case, in short, is that he obtained the decree for money in SCC Suit No. 286/21/1957 in respect of loan taken by the husband of the plaintiff and, in execution whereof, the suit land had been sold and the defendant as auction purchaser obtained delivery of possession on 23.11.68 over the same and since then he has claimed to be continuing in possession. The defendant has denied the allegation of perpetrating fraud in getting the property auction sold and has also made assertion that the suit is barred under Section 47 C.P.C. and also under Order 21 Rule 92 C.P.C. On these main pleadings the defendant has prayed for dismissal of the suit.

5. The trial court, after considering the pleading and evidence of the parties, came to the finding that the defendant did not dispossess the plaintiff from the suit land by exercising fraud, but also held that the auction sale of the suit land in execution proceeding was void and without jurisdiction in view of Section 49(M) of B.T.Act. However, after concluding that the suit was barred under section 47 and Order 21 Rule 92 C.P.C. as well as res judicata and limitation, it dismissed the suit In appeal, the appellate court formulated the following three points for determination in view of the submissions of the parties:–

(i) Whether the defendant respondent has got the suit land auction sold by suppressing the process and by playing fraud upon the court and whether the auction sale is nullity?

(ii) Whether the suit of the plaintiff is maintainable and whether the plaintiff appellant is entitled to a decree?

(iii) Whether the judgment and decree of the lower court is bad and liable to be set aside?

6. After considering the evidence, pleadings and rival submissions of the parties, the appellate court below concurred with the finding of the trial court that the execution proceeding was without jurisdiction and auction sa

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