1968 Supreme(MP) 73

High Court Of Madhya Pradesh
T. C. Shrivastava and G. P. Singh, JJ.
PIARELAL KHUMAN - Appellant
Versus
BHAGWATI PRASAD KANHAYALAL - Respondents
Letters Patent Appeal 9 Of 1965
Decided On : 04/02/1968

The executing court has jurisdiction to decide the question of the executability of a decree under Section 47, Civil Procedure Code, and its decision is binding on the parties until it is set aside.

Headnote:

EXECUTION OF DECREE - JURISDICTION OF EXECUTING COURT - APPLICABILITY OF SECTION 28 OF THE M. P. ABOLITION OF PROPRIETARY RIGHTS ACT - RES JUDICATA - LIMITATION.

Fact of the Case:

In 1924 and 1927, Chaturbhuj and Sewaram executed two simple mortgage deeds in favor of Pyarelal, Ramlal, and Motilal mortgaging their proprietary rights in village Jerwans along with the homefarm (sir and khudkasht) lands. In the second mortgage bond, they had agreed not to lease out the homefarm lands. Despite this agreement, they leased out the khudkasht lands to several persons. The mortgagees instituted a civil suit in 1943, and a preliminary decree was passed in 1946 for the sale of the properties, including the khudkasht lands. The final decree was passed in 1950, and execution proceedings were initiated. In the meantime, the M. P. Abolition of Proprietary Rights Act came into force in 1951. The debtors and creditors applied for settling the debt under Section 19 of the Act. The Claims Officer reduced the debt and declared that the balance of the debt remaining after adjusting the compensation paid to the creditors shall be recoverable from the sale of the lands in the hands of the lessees. The decree-holders applied for continuing the execution sale only against the lands held by the lessees for the reduced amount of the debt. Objections to the execution were filed by some of the judgment-debtors under Section 47, Civil Procedure Code, that the executions could not be proceeded with according to the provisions of the Abolition Act. These objections were rejected by the executing Court. The execution was proceeded with, and the lands were sold to several auction purchasers. The sales were confirmed. Appeals were filed in the High Court by the judgment-debtors, and some of them were allowed. Against the decision of the learned single Judge, only Kishanchandra Sharma went up in Letters Patent appeal, which was allowed. It was held that it was necessary for the creditors to obtain a fresh preliminary decree under Section 28 of the Abolition Act, and they could not proceed with the execution of the earlier final decree. This led to several applications by the judgment-debtors for restitution of the properties sold in execution of the decree. The executing Court allowed restitution of the lands but rejected the prayer for mesne profits. The auction-purchasers came up in appeal in the High Court, and the appeals were allowed by Sheodayal J. holding that the auction-purchasers were entitled to retain the lands and there could be no restitution. Against these decisions, the present Letters Patent Appeals have been filed by the judgment-debtors.

Finding of the Court:

The executing court had jurisdiction to decide the question of the executability of the decree under Section 47, Civil Procedure Code. The executing Court took the view that in cases where a preliminary decree and a final decree had already been passed, it was not necessary to pass a second preliminary decree again and the Court could give effect to the order of the Claims officer by executing for the reduced amount against the properties remaining encumbered. The executing Court's decision was upheld by a Single Judge of the High Court, but later reversed by a Division Bench in a Letters Patent Appeal. The auction sales held in execution are binding on all the judgment-debtors and cannot be set aside. The applications for restitution were barred by limitation under Article 181 of the Limitation Act.

Issues: 1. Whether the executing court had jurisdiction to decide the question of the executability of the decree under Section 28 of the M. P. Abolition of Proprietary Rights Act? 2. Whether the auction sales held in execution are binding on all the judgment-debtors? 3. Whether the applications for restitution were barred by limitation?

Ratio Decidendi: 1. The executing court had jurisdiction to decide the question of the executability of the decree under Section 47, Civil Procedure Code. Questions regarding the executability of a decree are matters which the executing Court must itself decide under Section 47, Civil Procedure Code. The applicability of Section 28 of the Abolition Act was a matter to be decided by the executing Court. 2. The auction sales held in execution are binding on all the judgment-debtors. The executing Court's decision to proceed with the execution was valid until it was set aside. The auction-purchasers were bona fide purchasers, and their title is not affected by the reversal of the decree after the confirmation of sale. 3. The applications for restitution were barred by limitation under Article 181 of the Limitation Act. The appellants admitted that in all cases possession was lost in 1954 except the case of Mahendra Kumar Sharma who lost possession in 1958. These applications were filed in 1961 and thus they were long time barred.

Final Decision: All the appeals are dismissed with costs.