A judgment debtor who is a member of the Scheduled Tribes and is entitled to the protection under Section 22 of the Orissa Land Reforms Act, 1960, is barred from filing a separate suit for declaration of title if he fails to raise an objection to the sale of the property before the property is actually brought to sale.

R. N. MISRA, J.

( 1 ) PLAINTIFF sued for declaration of title for the disputed property and having lost in the original Court as also in the Court of appeal had carried Second Appeal no. 4 of 1972 to this Court. Our learned brother Acharya, J. , also found against the plaintiff but having granted leave to appeal to a Division Bench, this appeal has been filed.

( 2 ) THE second defendant obtained a money decree against the plaintiff and levied execution of the decree in execution case No. 239 of 1957. The disputed property of the plaintiff was attached and ultimately sold by the Court on 15-41968. Defendant No. 1 purchased the same in Court auction and the sale in his favour was confirmed on 20th of June. 1968, there having been no objection raised to the sale. Admittedly the plaintiff is a member of the Scheduled Tribes while defendant No. 1 is not. Plaintiff filed the suit on the basis that the sale was in violation of the mandatory provisions of Section 22 (3) of the Orissa land Reforms Act of 1960 and was, therefore, void, invalid and inoperative and did not confer on defendant No. 1 any title.

( 3 ) BOTH the defendants filed a joint written statement and claimed that the provisions of Section 22 (3) of the Orissa Land 'reforms Act must be deemed to have been complied with when the Court sold the property in favour of defendant No. 1; the sale in favour of defendant No. 1 is not void and invalid in law and, therefore, plaintiff as judgment-debtor having not taken appropriate steps in the execution proceeding is not entitled to file this suit for the relief claimed.

( 4 ) THE Courts below have consistently found that while plaintiff is a member of the Scheduled Tribes, defendant No. 1 is not. The only question which requires examination is as to whether the auction sale is invalid in law. Section 22 of the orissa Land Reforms Act (hereinafter referred to as the 'act' ). At the relevant time ran thus :-

" (1) Any transfer of a holding or (a part?) thereof by a raiyat, belonging to a Scheduled Tribe shall be void except where it is in favour of- (a) a person belonging to a Scheduled Tribe, or (b) a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer : provided that in case of a transfer by sale the Revenue officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pav the market price for the land is not available, and in case of a gift unless he is satisfied about the bona fides thereof. (2) The State Government may having regard to the law and custom applicable to any area prior to the date of commencement of this Act by notification direct that the restrictions provided in Sub-section (1)shall not apply to lands situated in such area or belonging to any particular tribe throughout the State or in any part of it. (3) No such holding shall, unless the Court otherwise directs, be sold in execution of a decree to any person not belonging to a Scheduled tribe. (4 ). . . . . . . . . "

Section 23 declares that where a transfer is in contravention of Sub-section (1)of Section 22, the Revenue Officer has jurisdiction to declare the same to he invalid.

( 5 ) IT is not the plaintiff's case that he was not aware of the execution proceeding and the developments therein from stage to stage. He did not take any step in accordance with the provisions of Order 21 of the Code of Civil procedure for setting aside the" sale nor did he raise any objection to the saleability of the property before the property was actually brought to sale. The fact that the judgment-debtor belonged to the Scheduled Tribes and was, therefore, entitled to the protection under Section 22 of the Act was within the judgment-debtor's special knowledge and it was his duty to invite the attention of the Court to such a position. Nothing, however, was done. The Courts below have, therefore, proceeded on the footing that the fil