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Allahbad High Court
S.D.KHARE,R.B.MISRA,JAGMOHANLALSINHA
Ram Lochan - Appellant
Versus
Mahadeo Prasad Singh - Respondent
Decided On : 05/04/1970
The execution court had no jurisdiction to order the sale of immovable property in execution of the decree of the Small Cause Court. The sale was, therefore, void. The judgment-debtor was not barred from filing a suit for declaration that the sale was void, as the suit was not barred by Section 47, C.P.C. or by the principles of constructive res judicata.
Fact of the Case:
The decree-holder obtained a money decree against the judgment-debtor from the Court of Judge, Small Causes. The decree was transferred to the court of Munsif for execution. The execution court ordered sale of the plots in dispute and the decree was transferred for that purpose to the Collector. The plots were eventually sold in public auction and were purchased by the decree-holder. The judgment-debtor filed a suit for declaration that he was bhumidhar of the plots in dispute and for possession over the same. The suit was contested by the respondents. The trial court held that the suit was barred by Section 47, C.P.C. and by the principles of constructive res judicata, that the revenue Court had no jurisdiction to grant the relief prayed for, that respondents Nos. 2 to 5 were bona fide purchasers in good faith for value without notice to the plaintiff's title, and that the suit was also barred by limitation. The Additional Commissioner reversed the finding of the trial court on all the points and further held that the executing court had no jurisdiction to order the sale of the plots in execution of the decree of the court of Judge Small Causes. The Board of Revenue held that the Additional Commissioner wrongly took cognizance of the irregularities in sale, as that point could only be agitated before the execution court under Section 47, C.P.C. The Board, however, further held that the sale of the plots in dispute in execution was null and void because it took place after the commencement of the U.P. Civil Laws Amendment Act, 1954, which amended Section 42, C.P.C. as a result of which the executing court carried the same powers as the court which passed the decree. The respondents filed a writ petition challenging the decision of the Board of Revenue. The learned Single Judge allowed the writ petition and restored the order of the trial court.
Finding of the Court:
The execution court had no jurisdiction to order the sale of immovable property in execution of the decree of the Small Cause Court. The sale was, therefore, void. The judgment-debtor was not barred from filing a suit for declaration that the sale was void, as the suit was not barred by Section 47, C.P.C. or by the principles of constructive res judicata.
Issues: 1. Whether the execution court had jurisdiction to order the sale of immovable property in execution of the decree of the Small Cause Court? 2. Whether the sale was void? 3. Whether the judgment-debtor was barred from filing a suit for declaration that the sale was void?
Ratio Decidendi: 1. The execution court had no jurisdiction to order the sale of immovable property in execution of the decree of the Small Cause Court because Section 42, C.P.C., as amended by the U.P. Civil Laws Amendment Act, 1954, gave the executing court the same powers as the court which passed the decree. Since the decree in the instant case was passed by the Court of Judge, Small Causes, the execution court had no power to order the sale of immovable property. 2. The sale was void because it was conducted without jurisdiction. 3. The judgment-debtor was not barred from filing a suit for declaration that the sale was void because the suit was not barred by Section 47, C.P.C. or by the principles of constructive res judicata. Section 47, C.P.C. applies only to objections that are made during the execution proceedings, and the principles of constructive res judicata did not apply because the judgment-debtor had no opportunity to contest the sale in the execution proceedings.
Final Decision: The appeal is allowed. The order of the learned Single Judge dated 23rd April, 1969, is set aside. In the circumstances of the case we make no order as to costs.
R. B. MISRA, J. :- I have had the advantage of reading the judgment prepared by my brother Sinha, J. With all respects, however, I find myself unable to concur with the view taken by my learned Brother.
2. The present Special Appeal came up for hearing before a Division Bench. As on one of the points involved in the case there was conflict of judicial opinion, the Division Bench referred the case to a larger Bench. This is how this appeal came up before this Bench.
3. In order to appreciate the points involved in this case a few facts would be necessary. Matadin, the father of Ram Lochan appellant, was a fixed rate tenant of the plots in dispute. One Ram Naresh obtained a money decree against Matadin from the Court of Judge, Small Causes in the year 1953. He sought to execute the decree by attachment and sale of the immovable property of the judgment-debtor. As under the rules the Small Cause Court had no jurisdiction to execute the decree by attachment and sale of immoveable property, the decree-holder applied for the transfer of the decree to the Court of Munsif, Varanasi, for execution. The transferee Court ordered execution by sale of the plots in dispute and transferred the decree for auction sale to the Collector. Accordingly the plots in question were put to auction sale and were purchased by the decree-holder himself on 20th July, 1956. The sale was confirmed on 29th August, 1956, and sale certificate was issued on 8th September, 1956. The Dakhalnama on the record indicates that the decree-holder obtained possession on 14th March, 1957. He got his name recorded in the revenue papers also on the basis of the auction sale. On 4th March, 1960, the decree-holder-auction-purchaser sold the said plots to respondents Nos. 2 to 6. The judgment-debtor meanwhile died leaving behind Ram Lochan appellant as his heir and legal representative. The suit giving rise to the present appeal was filed by Ram Lochan for declaration that he was the Bhumidhar in possession of the plots in dispute and prior to him his father was the Bhumidhar in possession of the plots in dispute till his death, and, in the alternative, for possession in case he (Ram Lochan) was found to be out of possession. He alleged that defendant No. 1 (Ram Naresh) got the suit land sold in execution of the money decree of the Small Cause Court, though such a decree could not have been executed by attachment and sale of immoveable property by the executing Court after the enforcement of U. P. Civil Laws (Reforms and Amendment) Act (XXIV of 1954). He also alleged that the judgment-debtor had absolutely no knowledge of the sale proceedings, and no notice was served on him, and the decree-holder managed to get the property in dispute sold for a paltry sum of Rs. 360-14-0 though it was worth Rs. 6,000. It was further alleged that the judgment-debtor, and after him the appellant, had all along been in possession of the suit property in spite of the auction sale and the Dakhalnama.
4. The claim was resisted by the respondents on grounds, inter alia, that the suit was barred by Section 47, Civil P. C., barred by time, barred by res judicata, estoppel and acquiescence, that the Revenue Court had no jurisdiction to try the suit, that the plaintiff was not a Bhumidhar nor in possession, and that respondents Nos. 2 to 6, being the transferees for value in good faith without notice, were entitled to the protection of Sections 41 and 51 of the Transfer of Property Act.
5. The Assistant Collector, First Class, by and large, accepted the defence and dismissed the suit. On appeal, the Additional Commissioner reversed the decree and the findings of the trial Court, and decreed the suit. He held that the entire execution and sale proceedings had taken place behind the back of the judgment-debtor (Matadin) with the result that the land in suit was sold away for a paltry sum of Rs. 360/- and odd, that the execution Court had no jurisdiction at all to order the sale of immovable proper
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