Decided on August 07,1969

MOTILAL Respondents


- (1.) THIS is an appeal under section 100 of the Code of Civil Procedure, by the auction-purchaser and Mst. Dhirajbai Decree Holder against the reversing judgment and decree, passed by the learned Additional District Judge, Durg, in civil appeal No. 74-A of 64, whereby, the learned Judge decreed the suit of the plaintiffs-respondents, and declared that the auction sale conducted regarding their two holdings of unirrigated lands in execution proceeding of Civil Suit No. 90-A of 54, was illegal and without jurisdiction of the civil Court, and the respondents were, the Bhumiswamis of the suit land and they be put in possession. The plaintiffs-respondents were also allowed costs throughout.
(2.) THE facts in brief, giving rise to this second appeal were, that the appellant No. 2, obtained a money decree against the respondents in civil suit No. 90-A of 1954, from the Court of the Civil Judge, Class II, Bemetara, and in execution of that decree, the two holdings of unirrigated lands, measuring 8.38 acres, and 3.30 acres separately assessed to land revenue, were attached on 23-12-1960, and the auction sale was held on 12-9-61, and the sale was confirmed on 5-11-62. THE appellant No. 1 is the auction purchaser. THE respondents preferred an objection to the sale, under Order 21, rule 90 of the Code of Civil Procedure, on 31-10-64, contending that the sale of the property in question was illegal and void, under section 165 (7) of the Madhya Pradesh Land Revenue Code, 1959, as each of the holding was less than 10 acres. This application was dismissed. THEreupon the respondents filed a civil suit, No. 65-A of 1963, on 11-9-63, and sought a declaration as aforesaid, but ultimately on 26-6-64, the present suit was treated as an application under section 47 of the Code of Civil Procedure. The learned Civil Judge dismissed the suit of the respondents and they preferred an appeal, and it was allowed by the learned Additional District Judge as aforesaid, and hence this second appeal. The learned Additional District Judge, in support of his finding, relied on the authority reported in Rarnanna v. NalJaparajt. A I R 1956 SC 87.. Two questions arise for decision in this appeal, and the first is, when the property is attached in execution proceedings and the judgment-debtor has an objection to raise on the ground that the property is not liable to attachment and sale, is he entitled to wait until the sale has taken place and then move for setting aside the same on the ground that the Court had no jurisdiction to sell the property, and the second question is, if the first question is answered in the negative, whether the principle of constructive res judicata would come into play under section 11 of the Code of Civil Procedure.
(3.) SHRI V. S. Pandit, learned counsel for the appellants, has contended before me that the learned Judge has fallen into an error in coming to the conclusion that after the confirmation of the sale in the instant case, the respondents had a right to file an application under section 47 of the Code of Civil Procedure and get a declaration that the property in question was neither attachable nor saleable in the execution of the decree, and he cited in support, a ruling in Janak Raj v. Gurdial Singh and another, . A I R 1967 SO 608. Kashiram Ajitsingh and others v. Metal Trading Co., and another, 1968 MPLJ 201. and Mcrla Rarnanna v. Nallaparaju and others (supra). Shri S. Awasthi, the learned counsel for the respondents, on the other hand, urged, that Order 21, rule 90 of the Code of Civil Procedure relates to an application for setting aside the sale on the ground of material irregularity or fraud in publishing or conducting the sale, and even if the sale has become absolute, vide rule 92 of Order 21 of the Code, still the judgment- debtors have a right to challenge the sale by an application under section 47 of the Code in case of sale which is void, as in the instant case, and such application will be governed by Article 181, (replaced by Article 137 of the new Act), of the Limitation Act. He has also relied on the rulings in Merla Rarnanna v. Nallaparaju and others (supra), Maroti Vithoba v. Kisanlal Sheonarain (Decree- Holder-Auction Purchaser). 1938 N L J 389 = A I E 1938 Nag. 558 and Ithoba v. Bhagchand, 1964 as also Ahmed Hafiz Khan v. Mohammad Hasan Khan. 1963 M P L J 660..;

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