J. M. L. Sinha, J. - (1.) (for self and for D.M. Chandrashekhar, C. J.) :-This writ petition has been filed by Smt. Shanti Devi, hereinafter called the 'petitioner', praying that the order passed by respondent No. 3 directing dispossession of the petitioner from one third of house No. 75 situate in Nakhas Kohna, Allahabad, be quashed.
(2.) THE facts leading up to this petition can briefly be stated as under : One Gur Bachan Singh took a loan from the Industries Department of the State of Uttar Pradesh for starting an industry. Sharda Prasad son of Chhote lal, respondent No. 7, offered himself as one of the sureties for repayment of the loan advanced to Gur Bachan Singh. He claimed himself to be the owner to the extent of one-third share in the aforesaid' house. THE loan not having been repaid and Gur Bachan Singh having become insolvent and not being traceable, a certificate was issued by Collector, Allahabad, for recovery of the amount due as arrears of land revenue. In that connection one third portion of the aforesaid house was sold by auction on 17th of October, 1975 and was purchased by Nand Kishore, respondent No. 5. On 6th of March, 1976, the petitioner and her family members were dispossessed from the western half of the house through police force. THE petitioner's case is that Sharda Prasad son of Chhotelal had only one-fourth share in the said house which he had sold away to Bachcha Lal on 2'6th of December, 1960. On 22nd of March, 1966, Mohan Lal, who also had one-fourth share in the said house, together with Bachcha Lal, who had purchased one-fourth share of Sharda Prasad, sold their shares viz. one-half of the house in question, in favour of the petitioner. On 9th of October 1974, the heirs of Bankey Lal, to whom the remaining one-half share in the house belonged, transferred that share to the petitioner and her husband. THE petitioner thus became the sole owner of one half share and co-owner along with her husband of the remaining half share in the house. THE petitioner's case further is that Sharda Prasad son of Chhotelal having transferred his share in the house on 26th of December, 1960, had neither any interest therein on the date he stood surety for Gur Bachan Singh nor could he hypothecate any part of the house and, consequently, the sale by auction of one third part of the house in question was wholly illegal and without jurisdiction. The-petition has been opposed on behalf of the State as well as by Nand Kishore, respondent No. 5. In view of the copies of sale-deeds annexed with the petition, it could not be seriously controverted before us on behalf of the respondents that Sharda Prasad son of Chhotelal had transferred his share in the house in question and that he had no interest left therein on the date he stood surety for Gur Bachan Singh. It should, therefore, be accepted that Sharda Prasad son of Chhotelal could neither hypothecate any part of the house in question in f avour of the State in his capacity as surety nor could any part of that house be sold in satisfaction of the dues outstanding against Gur Bachan Singh. Learned counsel for the respondents, however, contended that it was open to the petitioner to file objections when the house was attached and later when the sale took place. Learned counsel stressed that, since the petitioner did not raise any objection either at the time of the attachment of the house or at the time of its sale, it is not open to her now to come up in writ proceedings and claim possession of the house on the ground that the sale was invalid.
(3.) LEARNED counsel for the petitioner in reply urged that, according to Rule 273-A of the Zamindari Abolition and Land Reforms Rules, the attachment of immovable property has to take place in accordance with Order 21, Rule 54, CPC and an order to the defaulter is to be issued in Form 73-D, but no compliance thereof was made with the result that the petitioner could not know about the proceedings in which the house was auctioned till she and her family were dispossessed through police force. LEARNED counsel urged that the petitioner could know of these proceedings only after she made inspection of the record " subsequent to her being dispossessed from the house. LEARNED counsel further urged that the formalities prescribed under the Zamindari Abolition and Land Reforms Rules regarding proclamation and conduct of sale were also not duly complied with. A perusal of Rule 273-A shows that attachment of an immovable property in proceedings for recovery of land revenue has to be done in the manner prescribed in Order 21, Rule 54 of the Civil Procedure Code. According to Order 21, Rule 54, CPC the attachment of immovable property is to be made by an order prohibiting the judgment debtor from transferring or charging the property in any way. It further requires that the order shall be proclaimed at some place on, or adjacent to such property by beat of drum or other customary mode and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house. It was explicitly averred by the petitioner in her affidavit that the entire proceedings regarding attachment and sale of the house were total farce and that the necessary requirements in the matter of attachment and sale were not complied with. These facts were reiterated in the rejoinder-affidavit filed on behalf of the petitioner. In the counter-affidavit sworn on behalf of the State nothing is said about the attachment though about the sale it is said (para 18) that the sale proclamation was duly made on 25th of July, 1975 and the auction took place thereafter. In the counter-affidavit of respondent No. 5, which was filed at a very belated stage, again nothing is stated about attachment. All that is said is that the auction took place after duly completing the requisite formalities (para 19). It would thus appear that, the contention of the petitioner that the formalities required by law in regard to the attachment of the house, remained uncontroverted. That apart, the contention of the petitioner in that connection even otherwise appears to be more natural and probable. A perusal of the annexures to the petition leaves no room for doubt that the petitioner had acquired title over the entire house. If the attachment of the property had taken place in the manner required by law, the petitioner could very well know about the proceedings and the fact that one-third portion of her house was proposed to be sold on the premise that it belonged to Sharda Prasad son of Chhotelal. In that case the petitioner would not have omitted to file objections in order to safeguard her own interest in the house.;