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Krishnaji Pandurang Naik Vs. Govind Narasimha Umarji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1400 of 1974
Judge
Reported inAIR1976Kant162; ILR1976KAR1146; 1976(1)KarLJ346
ActsCode of Civil Procedure (CPC), 1908 - Sections 47; Bombay Agricultural Debtors' Relief Act
AppellantKrishnaji Pandurang Naik
RespondentGovind Narasimha Umarji and ors.
Appellant AdvocateMurlidhar Rao, Adv.
Respondent AdvocateE.V. Krishnaswamy Rao, Adv. and ;N. Basavaraju, H.C.G.P.
Excerpt:
.....maintainable. - the joint civil judge, junior division, belgaum before who in the proceedings were initiated, held that the transaction complained of was not a mortgage. such a suit is a must in this case, since the contention that the award decree was vitiated by fraud and collusion cannot be investigated in the execution proceedings under section 47. the view taken by the court is therefore perfectly sound......4,000. on 30-51961, the sale was confirmed in his favour.2. the petitioner wanted to execute the award decree. so, he filed an execution petition in the court of the second additional munsiff, belgaum to which he had impleaded the state government and also the auction purchaser respondent 3. the petitioner contended that they are the representatives of the judgment-debtor g. n. umarji and they should be directed to deliver possession of the property to him. but the government and the auction purchaser contended that the decree was owned by collusion and practising fraud, and was not binding on them. the learned munsiff rejected the execution petition observing that the decree-holder, if he is so advised, might file a regular suit and such a suit was not barred under section 47 of the.....
Judgment:
ORDER

1. Krishnaji Pandurang Naik the petitioner was the owner of lands bearing Survey Nos. 9 and 11 of Nandgad village. In 1946, he sold the lands to Govind Narasimha Umarji respondent 1 before me. After the sale, he instituted proceedings under the Bombay Agricultural Debtors' Relief Act claiming that the alienation made by him was not an out and out sale, but only a mortgage and he should be permitted to redeem the same. G. N. Umarji resisted the action. The Joint Civil Judge, Junior Division, Belgaum before who in the proceedings were initiated, held that the transaction complained of was not a mortgage. Against that decision, the petitioner preferred an appeal to the B. A. D. R. Court, In the said appeal, the petitioner and respondent 1 entered into a compromise. They agreed that the alienation regarding Survey, No. 9 should be treated as mortgage and the one in respect of Survey No. 11 should be treated as sale. On 14-10-1960, the B.A.D.R. Court made an award accordingly.

G. N. Umarji was a local Talati. He had taken Takkavy loan from the Government on the security of Survey No. 9. He became a defaulter in payment of the loan. He had also misappropriated certain Government funds. To recover the said sum, the Government brought land Survey No. 9 to public auction. On 6-11-1957, in the absence of bidders, the Government purchased the land for a nominal price of Re. 1. On 10-3-1961, the said land was again auctioned in which Somanna Gangaram Gunjikar respondent 3 before me purchased it, for Rs. 4,000. On 30-51961, the sale was confirmed in his favour.

2. The petitioner wanted to execute the award decree. So, he filed an execution petition in the Court of the Second Additional Munsiff, Belgaum to which he had impleaded the State Government and also the auction purchaser respondent 3. The petitioner contended that they are the representatives of the judgment-debtor G. N. Umarji and they should be directed to deliver possession of the property to him. But the Government and the auction purchaser contended that the decree was owned by collusion and practising fraud, and was not binding on them. The learned Munsiff rejected the execution petition observing that the decree-holder, if he is so advised, might file a regular suit and such a suit was not barred under Section 47 of the Code of Civil Procedure. Aggrieved by that order, the petitioner preferred an appeal to the Second Additional District Judge, Belgaum. The learned Judge, among other findings, held that the State Government and the auction purchaser were not representatives of the judgment debtor and the petitioner, therefore, could have his remedy by way of suit.

Hence this revision petition.

3. From the above facts, it is seen that the State Government and S.G. Gunjikar were not parties to the award proceedings. There was also no adjudication by a Court that Survey No. 9 was mortgaged to G. N. Umarji and not sold to him. The petitioner claims possession only on the basis of the consent award. On these facts, can we say that the view taken by the appellate Judge was incorrect? Can we say that the State Government and S.G. Gunjikar were representatives of the judgment debtor? Should they be regarded as parties to the award proceedings? Section 47 of the Code of Civil Procedure provides an effective answer to these questions. It states that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit, and that where a question arises as to whether any person is or is not the representative of a party, such question shell, for the purposes of this section, be determined by the Court.

The Explanation thereunder provides that for the purposes of this section, a plaintiff whose suit has, been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.

On the strength of this Explanation, it was urged for the petitioner that S. G. Gunjikar who was an auction purchaser should be held to be a party to the proceedings. It was also urged that the first sale made in favour of the State Government was void in view of the decision of the Supreme Court in Ramrao Jankiram Kadlam v. State of Bombay : [1963]48ITR108(SC) . Counsel for the respondents, however, submitted that the ratio of that decision is not applicable to the facts of the present case since the Supreme Court was concerned in that case with a sale without any statutory rules regulating the auction, whereas the position in the present case was quite different. It is said that erstwhile State of Bombay had framed Land Revenue Rules for regulating such auction in which the State Government validly purchased the land for a nominal price of Re.1 for want of bidders and that sale was not invalid.

4. The learned District Judge has not expressed any opinion on the validity of the sale in favour of the Government. He has left open that question for determination in an appropriate suit. I think it is a wise step, and so I leave it there.

5. The question which I should primarily consider is, whether S. G. Gunjikar should be held to be an auction purchaser within the scope of the Explanation to Section 47. It seems to me, that the auction purchaser referred to in the said Explanation is an auction purchaser who has purchased the property in execution of the decree concerned with the property, and not a person who has purchased the property in an independent sale, unconnected with the said decree. S. G. Gunjikar purchased the land in a parallel proceedings unconnected with the award decree. Similarly, the sale in favour of the State Government. Both, therefore cannot be said to be the auction purchasers within the said explanation. They cannot also be considered to be representatives of G. N. Umarji, the judgment-debtor in the award decree. Section 47 is therefore no bar for instituting a separate suit. Such a suit is a must in this case, since the contention that the award decree was vitiated by fraud and collusion cannot be investigated in the execution proceedings under Section 47. The view taken by the Court is therefore perfectly sound. My view finds support from the decision of the Delhi High Court in Sham Mohan Lal v. jai Gopal : AIR1968Delhi104 .

6. Before I part with the case, I must refer to the last contention which was strongly put forward by counsel for the petitioner. He urged that the decree holder should not be driven to the civil court and if necessary, the auction purchaser or the State must institute a suit challenging the award decree. The contention appears to be simple from my view. One who wants a relief of possession must go to the civil court. He cannot seek to execute the consent award decree against third parties when they oppose the execution on the ground of fraud and collusion between the decreeholder and judgment-debtor.

7. In the result, this revision petition fails and is dismissed, but without costs.

8. Petition dismissed.


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