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HIGH COURT OF MADHYA PRADESH
T.C. SHRIVASTAVA & G.P. SINGH, JJ.
Piarelal
Versus
Bhagwati Prasad
L.P.A. No. 9 of 1965
Decided on: 22.4.1968
There exists a distinction between Tribunals of limited jurisdiction and a Civil Court. A Tribunal cannot give itself jurisdiction by deciding jurisdictional facts wrongly unless power has been given to it to decide such jurisdictional facts.
There are no such limitations on the power of a Civil Court and it must decide itself all matters which arise before it, including questions about jurisdiction.
The decree holder and the judgment debtors held different views about the implications of section 28 of the Abolition Act and as the matter was raised by them before the executing Court, it became incumbent upon it to decide the question before proceeding further with the execution. The matter fell squarely within the ambit of section 47 C.P.C. and the question of excitability of the decree could not be left undecided.
The executing Court had jurisdiction to decide the question of the excitability of the decree under section 47 C.P.C.
(Para 21)
(2) Jurisdiction-wrong decision not inoverative.
Where there is no inherent lack of jurisdiction, an erroneous decision of the executing Court does not become inoperative as the Court had the right to decide wrong by as well as right by. ILR 25 Bom. 337 relied.
(Para 22)
(3) Civil P.C. 1908-Order 21, Rule 92-sale held in execution no stay-sale held valid.
Where in an appeal no stay of sale was obtained, the sale was valid so long as the order of the executing Court was holding the field. Auction purchaser is not affected by the reversal of the decree after the confirmation of sale. ILR 10 All. 166; AIR 1967 SC 608 relied on.
(4) Civil P.C. 1908-S.11-constructive res-judicata- applicability to execution proceedings.
Constructive res-judicata applies to execution proceedings also and a plea on which the judgment-debtors could have objected to the execution cannot later be raised if there is 'Omission to raise it at the proper occasion. 1962 JLJ 740; AIR 1954 SC 340; AIR 1943 Bom. 288; AIR 1952 Nag. 275; 1957 JLJ 859; ILR 25 Bom. 337; AIR 1953 SC 65 AIR 1938 Pat. 427; AIR 1958 AP I; AIR 1962 Pat. 72; AIR 1966 SC 1061; 34 MPLC 164; AIR 1936 PC 46; relied on.
(Para 24)
(5) Civil P.C. 1908-Order 21, Rule 22-execution proceedings adjourned from time to time knowledge of judgment-debtors presumed-no objections filed-debarred from objecting against purchasers bona fide.
Where the execution proceedings continued for long and notices of the proceedings were issued to all the judgment debtors they will be deemed to have knowledge of the proceedings and having failed to object to the proceedings, they are debarred from raising the objections against the auction purchasers who purchased land bona fide.
(Para 25)
(6) Abolition of Proprietary Rights (Estates Mahals, Alienated Lands) Act, 1950 (MP)-S. 28-applicalility of the provisions-home-farm land fall in this category.
The provisions of section 28 apply to the properties remaining encumbered which have not vested in the State. The home-farm lands fell in this category.
(Para 26)
(7) Limitation Act, 1908-Article 181-objection to dispossession in execution-Article 181 and not S. 151 C.P.C. applies.
Objection on the ground of dispossession in execution should be filed within 3 years from the date of dispossession, section 151 of C.P.C., has no application but Article 181 applies. AIR 1956 SC 87 relied.
(Para 28)
T.C. SHRIVASTAVA, J.
1. This judgment governs the disposal of twelve Letters Patent Appeals No. 8, 9, 11, 12, 13, 14, 15, 17, 19, 20, 21 and 22 of 1963 which have all been filed against the order of Shivdayal, J., allowing the several appeals filed by the respondents.
2. In order to appreciate the points raised in support of the appeals, it is necessary to state the facts in some detail. Chaturbhuj and Sewaram executed two simple mortgage deeds on 4.9.1924 and 30.6.1927 ill favour of Pyarelal, Ramlal and Motilal mortgaging their proprietary rights in village Jerwans along with the home farm (Sir and Khudkasht) lands. In the second mortgage bond, they had agreed to the condition that they would not lease out the home-farm lands. In spite of this agreement; they leased out the Khudkasht lands to several persons. The mortgages and mortgagees have been succeeded by their legal representatives but it is not necessary to give details. We shall refer to the mortgagees a, creditors, the mortgagors as principal judgment-debtors and the lessees as lessee-judgment-debtors.
3. The creditors instituted Civil Suit No. 5-A of 1943 in the Court of Additional District Judge, Sagar, on the basis of the two mortgage deeds impleading the debtors and the lessees of Khudkasht lands. On 9.4.1946, a preliminary decree was passed for sale of the properties including the Khudkasht land, but it was stated in the decree that the lessees had no right to redeem and were discharged. One of the lessees went up in appeal on the ground that the lands could be validly leased out by the proprietors in the course of village management but this contention was negatived on account of the express covenant to the contrary in the second mortgage deed. Another contention that the lands were protected under section 43 of the M.P. Abolition of Proprietary Rights Act (hereinafter referred to as "the Abolition Act") was also rejected.
4. On 25.1.1950, a final decree was passed for sale of the village and the lands. On 21.4-1950, the mortgagees applied for execution and steps were taken to sell the lands. In the meantime, the Abolition Act had come in force on 31.3.1951. The debtors and the creditors applied for setting the debt under section 19 of the Abolition Act. The Claims Officer reduced the debt from Rs. 48,891-00 to Rs. 39,615-00 and declared that the balance of the debt remaining after adjusting Rs. 6954-00 paid as compensation to the creditors shall be recoverable from the sale of the lands in the hands of the lessees.
5. On 4.12.1952, 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 by the principle debtors Sunderlal and Sewaram (Misc. Judicial Case No. 26 of 1953), lessee judgment-debtors Kishanchandra Sharma (Misc. Judicial Case No. 35 of 1953) and other lessee judgment debtors, Udaisingh, Ramdin, Gorelal, Rewa, Randhire, Parma and Pyarelal (Misc. Judicial Case No. 38 of 1953). All these objections were rejected by the executing Court. The execution was proceeded with and the lands were' sold to several auction purchasers. The sale, were confirmed.
6. Appeals were filed in the High Court by the judgment-debtors, Sunderlal and Sewaram (Misc. Appeal No. 49 of 1954), Kishanchandra Sharma (Misc. Appeal No. 59 of 1954), and Pyarelal (M.A. No. 127 of 1954) against the order of the executing Court rejecting their objections. Other judgment debtors did not appeal. All these appeals were decided by Tare, J, who held (i) that the sir lands could not be sold; and (ii) that the execution could proceed so far as the sale of Khudkasht land, in the hands of the lessees were concerned. Against the decision of the learned single Judge, only Kishanchandra Sharm
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