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IN THE HIGH COURT OF ALLAHABAD
B. D. AGRAWAL
SUNIL KUMAR - Appellant
Versus
RAM DITTA MAL - Respondents
First Appeal 287 Of 1975
Decided On : 03/12/1986
AUCTION SALE - JURISDICTION - HOUSE TAX - EXECUTION - ATTACHMENT - SUBSTITUTION OF LEGAL REPRESENTATIVE - COLLUSION - EX PARTE DECREE - AUCTION PURCHASER - VOID DECREE - SOCIAL JUSTICE - INTEREST OF APPELLANTS - STATUTORY PROVISIONS - TITLE OF APPELLANTS LOST - APPEAL DISMISSED WITH COSTS BORNE BY PARTIES. AUCTION SALE - JURISDICTION - HOUSE TAX - EXECUTION - ATTACHMENT - SUBSTITUTION OF LEGAL REPRESENTATIVE - COLLUSION - EX PARTE DECREE - AUCTION PURCHASER - VOID DECREE - SOCIAL JUSTICE - INTEREST OF APPELLANTS - STATUTORY PROVISIONS - TITLE OF APPELLANTS LOST - APPEAL DISMISSED WITH COSTS BORNE BY PARTIES.
Fact of the Case:
Plaintiffs, the grandsons of Shiv Lal, filed a suit challenging the auction sale of their house, which was sold to satisfy a decree for house tax arrears. The plaintiffs claimed that the decree was obtained fraudulently and that the execution proceedings were void. The defendants, including the auction purchaser, contended that the decree was valid and that the sale was conducted in accordance with the law.
Finding of the Court:
The court found that the Munsif Court had jurisdiction to hear the suit for recovery of house tax, as the tax constituted a first charge on the property and the relief sought included the sale of the property. The court also found that the service of summons on Shiv Lal was valid, despite the incorrect address given in the plaint, as the postal letter reached him in the ordinary course of business. The court further held that the absence of attachment prior to the auction sale did not vitiate the sale, as the main object of attachment is to give publicity to the sale and to prevent the judgment-debtor from alienating the property. The court also found that the substitution of Shiam Lal, Shiv Lal's son, as the legal representative of Shiv Lal in the execution proceedings was valid, as he was the natural guardian of his minor sons and there was no lack of bona fides on the part of the decree-holder. The court also rejected the plaintiffs' contention that Shiam Lal was in collusion with the auction purchaser, finding that there was no evidence to support this allegation.
Issues: 1. Whether the Munsif Court had jurisdiction to hear the suit for recovery of house tax? 2. Whether the service of summons on Shiv Lal was valid? 3. Whether the absence of attachment prior to the auction sale vitiated the sale? 4. Whether the substitution of Shiam Lal as the legal representative of Shiv Lal in the execution proceedings was valid? 5. Whether Shiam Lal was in collusion with the auction purchaser?
Ratio Decidendi: 1. The court held that the Munsif Court had jurisdiction to hear the suit for recovery of house tax, as the tax constituted a first charge on the property and the relief sought included the sale of the property. 2. The court held that the service of summons on Shiv Lal was valid, despite the incorrect address given in the plaint, as the postal letter reached him in the ordinary course of business. 3. The court held that the absence of attachment prior to the auction sale did not vitiate the sale, as the main object of attachment is to give publicity to the sale and to prevent the judgment-debtor from alienating the property. 4. The court held that the substitution of Shiam Lal as the legal representative of Shiv Lal in the execution proceedings was valid, as he was the natural guardian of his minor sons and there was no lack of bona fides on the part of the decree-holder. 5. The court held that there was no evidence to support the plaintiffs' contention that Shiam Lal was in collusion with the auction purchaser.
Final Decision: The court dismissed the plaintiffs' suit, holding that the decree was valid, the execution proceedings were not void, and the auction sale was conducted in accordance with the law.
( 1 ) THIS is plaintiffs appeal.
( 2 ) 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 appears 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 Munsifs 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.
( 3 ) 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 on 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. It 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 O. 21, R. 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 duty issued and has attained finality.
( 4 ) 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 O. XXI, R. 89/90 or S. 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.
( 5 ) 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.
( 6 ) 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 appellants submission is contained, however, in the averment made i
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