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K. V. V. Satyanarayana Vs. Yenamandala Subba Rao - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 1080 of 1975
Judge
Reported inAIR1977AP139
ActsAndhra Pradesh Land Reforms (Ceiling on Agriculture Holdings) Act, 1973 - Sections 7, 7(1), 7(2) and 7(7); Tenancy Laws; Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972 - Sections 5(1); Code of Civil Procedure (CPC), 1908 - Sections 47; Transfer of Property Act; Indian Contract Act
AppellantK. V. V. Satyanarayana
RespondentYenamandala Subba Rao
Appellant AdvocateG.R. Subbarayan, Adv.
Respondent AdvocateC. Poornaiah, Adv.
Excerpt:
property - court sale - sections 7, 7 (1), 7 (2) and 7 (7) of andhra pradesh land reforms (ceiling on agriculture holdings) act, 1973, tenancy laws, section 5 (1) of andhra pradesh agricultural lands (prohibition of alienation) act, 1972, section 47 of code of civil procedure, 1908, transfer of property act and indian contract act - auction-purchaser purchased certain agricultural land in court sale - execution application filed for delivery of land - respondent sought dismissal of application under act of 1972 - land exceeded specified limit of land fixed under act of 1972 - question arose whether court sale null and void - executing court stayed delivery of land until tribunal constituted under act of 1973 decides validity of court sale under section 7 (7). - - the lower court took.....sambasiva rao, j.1. a question of topical importance relating to delivery of agricultural land in pursuance of an execution court sale vis-a-vis the land reforms enactments, which have been recently passed by the legislature of andhra pradesh, arises in this revision petition. our learned brother a.v. krishna rao, j., placed this matter before a division bench in view of this importance.2. this is an auction-purchaser's revision petition. in execution of a decree in o.s. 279/71 on the file of the district munsif's court, razole, the decree-holder got attached agricultural land of ac. 16-35 cents on 22nd of january, 1972. it is stated that the total holding of the judgment-debtor is ac. 19-38 cents. the attached land was sold on 8-10-1973 and the same was confirmed by the court on.....
Judgment:

Sambasiva Rao, J.

1. A question of topical importance relating to delivery of agricultural land in pursuance of an execution Court sale vis-a-vis the land reforms enactments, which have been recently passed by the Legislature of Andhra Pradesh, arises in this revision petition. Our learned brother A.V. Krishna Rao, J., placed this matter before a Division Bench in view of this importance.

2. This is an auction-purchaser's revision petition. In execution of a decree in O.S. 279/71 on the file of the District Munsif's Court, Razole, the decree-holder got attached agricultural land of Ac. 16-35 cents on 22nd of January, 1972. It is stated that the total holding of the judgment-debtor is Ac. 19-38 cents. The attached land was sold on 8-10-1973 and the same was confirmed by the Court on 25-9-1974. The auction-purchaser filed E.A. 1506/74 for delivery of the property; The judgment-debtor, who is the respondent, filed E.A. No. 377/75 seeking dismissal of the auction-purchaser's application for delivery in view of the prohibition of alienation of agricultural land contained in the Andhra Pradesh Act 13 of 1972. The executing Court partly allowed this application staying delivery of the land until the Tribunal constituted under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings ) Act , 1973, which will hereinafter be referred to as 'the Ceiling Act' decides the validity of the Court sale under Section 7(7) of that Act. It may be noticed here that the notified date for the Ceiling Act is 1-1-1975 and the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972 hereinafter referred to as the Prohibition of Alienation Act' , had its effect by virtue of the earlier Ordinance form 2nd May, 1972. The Court sale was thus held after the Prohibition of Alienation law came into force. The lower Court took the view that the Prohibition of Alienation Act and the Ceiling Act treated Alienation's like sale in contravention of the former Act as null and void and if a question arises as to whether a sale was null and void, it will have to be decided only by the Tribunal constituted under Section 7(7) of the Ceiling Act. Consequently it stayed the delivery of the land sought by the auction-purchaser till such decision is rendered by the Tribunal.

3. Sri G.R. Subbarayan , appearing for the auction-purchaser petitioner raises three contentions before us. The first of them relates to facts of the case. In his submission the total holding of the judgment-debtor i.e., Ac. 19-38 cents was dry land and was consequently below the limit of ten hectares which is the specified limit of holding of dry land for the purpose of the Prohibition of Alienation Act. On the other hand, the respondent's case is that an extent of Ac. 7-00 was double crop wet, as it was being cultivated by the bore wells for the last 15 years. Ac. 7-00 of wet land was equivalent of Ac. 17-50 cents of dry land as per the provisions of the Prohibition of Alienation Act. Consequently the total extent of the land held by the judgment-debtor on 2-5-1972, when calculated in terms of dry land, comes to Ac. 29-88 cents i.e. more than ten hectares. Sri Subbarayan disputes that the extent of Ac. 7-00 is wet, but this contention does not appear to have been raised before the lower Court. The judgment-debtor in his application E.A. 377/75 stated that Ac. 7-00 was double crop wet land and so, his total holding should be reckoned as Ac. 29-88 cents dry. This averment was not demurred to by the auction-purchaser in his counter. Since the statement of the judgment-debtor was not denied by the auction-purchaser in his counter, the Court naturally proceeded and rightly so in our opinion, that the total extent of the holding could be reckoned at Ac. 29-88 cents and therefore exceeded the specified limit of ten hectares of dry land fixed under the Prohibition of Alienation Act. The auction-purchaser cannot raise this question for the first time in a revision petition, having failed to deny the statement of the judgment debtor in the lower Court. Had such a denial been made, that Court would have certainly recorded necessary evidence and a finding in regard to it. We will have to, therefore accept for the purpose of the present petition, as the lower Court has done that the judgment debtor had on 2nd May, 1972, more than ten hectares of dry land in his holding.

4. Sri Subbarayan's second argument is that what the execution Court was concerned with is a claim for delivery of property in pursuance of a Court sale which had been confirmed and so, it is purely a proceeding under the Civil Procedure Code. Neither the Prohibition of Alienation Act nor the Ceiling Act has any application or relevance when this claim under the provisions of the Civil Procedure Code is being considered. He amplifies the argument by saying that the two land reforms Acts treat an alienation by sale etc., as null and void only for the limited purpose of implementing the land reforms. Indeed that is the purpose for which the two enactments were made by the Legislature. It is neither reasonable nor permissible to travel beyond this limited purpose of the two Land Reforms enactments and treat the sales and other alienations as null and void for all purposes. These enactments which are intended to bring about land reform do not impinge upon the provisions of the Civil Procedure Code, Transfer of Property Act, Contract Act etc. Theirs is the very limited purpose of imposing ceiling on agricultural land holdings. So long as that purpose is served, the provisions of other statutes can be enforced by Court. If ultimately the Tribunal under the Ceiling Act decides that the Court sale is null and void then the State would have power, under the proviso to Section 7(8) of the Ceiling act, to take the excess land from the alienee also. Until then the proceedings under other enactments and their provisions should be given effect to. Therefore Sri Subbarayan maintains that the lower Court was wrong in staying the delivery proceedings until the Tribunal under the Ceiling Act decides the question.

5. This is the problem which has got topical importance until ceiling legislation is fully implemented and enforced. It is necessary to examine the material provisions of the two enactments which bear on this question. Section 4 of the Prohibition of Alienation Act specifies ten hectares of dry land as the specified limit of holding for the purpose of Section 5. Section 5, in its turn, imposes prohibition of alienation by persons who have holdings in excess of the specified limit as prescribed under Section 4 either by way of sale, lease for a period exceeding six years, gift exchange etc. Sub-section (1) of Section 5 further declares any alienation made or partition effected or trust created in contravention of the section as limited to voluntary alienation made or partition effected or trust created in contravention of the Section as null and void. This prohibition is not limited to voluntary alienations by holders of land. Sub-section (3) of Section 5 extends the effect of Sub-section (1) and (2) 'to any transaction of the nature referred to therein in execution of a decree or order of a civil Court or of any award or order of any other authority.' It is thus plain that even Court sales of agricultural land, which form part of a holding in excess of the specified limit, are declared null and void. Section 9 lays down that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a Court, tribunal or other authority. Therefore, the provisions of the Prohibition of Alienation Act have an overriding force and prevail over other enactments if there is inconsistency between it and them.

6. Coming to the Ceiling Act, Sub-section (1) of Section 7 says that where on or after the 24th January, 1971, but before the notified date (1-1-1975) any person has transferred whether by way of sale, gift, usufructuary mortgage, exchange, settlement, surrender or in any other manner whatsoever, any land held by him or created a trust of any land held by him, then the burden of proving that such transfer or creation of trust has not been effected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holdings, shall be on such person, and where he has not so proved , such transfer or creation of trust, shall be disregarded for the purpose of the computation of the ceiling area of such person. Sub-section (2) of the same Section deals with alienation in contravention of the Prohibition of Alienation Act and reads as follows:

'Notwithstanding anything in Sub-section (1) any alienation made by way of sale, lease for a period exceeding six years, gift, exchange, usufructuary mortgage or otherwise, any partition effected or trust created of a holding or any part thereof, or any such transaction effected in execution of a decree or order of a civil Court of any award or order of any authority, on or after the 2nd May, 1972 and before the notified dated in contravention of the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act 1972 shall be null and void.'

Material portions of Sub-section (7) of the same Section may also be quoted. They are :

'(7) If any question arises:

(a) whether any transfer or creation of a trust effected on or after the 24th January, 1971 , had been effected in anticipation of and with a view to avoiding or defeating the objects of, any law relating to a reduction in the ceiling on agricultural holdings;

(b) whether any alienation made, partition affected or trust created on or after the 2nd May, 1972 is null and void;

(c) xx xx xx xx(d) xx xx xx xx(e) xx xx xx xx such question shall be determined by the Tribunal, after giving an opportunity of being heard to the affected parties, and its decision thereon shall, subject to an appeal and a revision under this Act, be final.'

Sub-section (8) deals with situations which arise after the decision by the Tribunal under sub-section (7). It is in the following terms:

'If the Tribunal decides that any transfer or creation of trust had been effected in anticipation of, and with a view to avoiding or defeating the objects of, any law relating to a reduction in the ceiling on agricultural holdings or that any alienation made or partition effected or trusted created is null and void and if as a result of such transfer, alienation or creation of trust, the holding of the person or the family unit, that remains on the notified date does not exceed the extent of land that he or the family unit is liable to surrender, then, the Tribunal shall treat the entire holding thus left over as the extent of land to be surrendered under the provisions of this Act by the person or the family unit, as the case may be.

Provided that the balance of extent of land that remains liable to be surrendered by the person or family unit shall, subject to such rules as may be prescribed be surrendered by the alienee who is any transaction effected in contravention of the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act , 1972.'

Section II of the Act relates to vesting of land surrendered and Section 16 relates to claims for the amount payable. Section 17 in its turn, prohibits alienation of buildings or parts thereof, which are in excess of the ceiling area as on 24th January 1971, or at any time thereafter on or after the notified date. It thus prevents alienations subsequent to the notified date. The provisions of this Act also are given overriding effect under Section 28. By virtue of Sub-section (2) of Section 30 the Prohibition of Alienation act is repealed.

7. The essence of Sri Subbarayan's contention is that the import of the expression 'null and void' used in both the enactments should be restricted to the purposes of those enactments only and should not extended to other situations. The Legislature did not intend and they should not be construed as taking away the rights of persons which they have under the other enactments. Under the Code of Civil Procedure the petitioner, who has been the auction-purchaser and whose sale had been confirmed by the Court is entitled to get possession. If and when the Tribunal goes into the question under sec. 7 (7) of the Ceiling Act and decides that the Court sale is null and void, the excess land will be taken from him, if what the judgment-debtor had in his hands was not sufficient to meet the extent of land to be surrendered. We will now test the tenability of this contention.

8. Maxwell in the Twelfth edition of his Interpretation of Statutes says at page 47 that a statute is to be read as a whole and 'make construction on all the part together, and not of one part only by itself'. Every clause of a statute is to be construed with reference to 'the context and other possible, to make a consistent enactment of the whole statute'. At the same page the learned author also states that the historical setting of any legislation may be considered but at the same time notes the limitation that the Court is not at liberty to construe an Act of Parliament by the motives which influenced the Legislature. Again a passage at page 113 under the heading 'Restriction of specific object' is brought to our notice. There, the learned author says:-

'In many cases where it was evident that a literal construction would have carried the operation of the Act far beyond the object with which it was enacted, words have been given a restricted construction.'

Another observation at page 114 referring to an illustration that an expression was interpreted as limiting the power only to certain situations like exercising judicial functions and not extending its scope to legislative function is brought to our notice.

9. Craies on Statute Law, seventh edition states at page 162 that there are two rules as to the way in which terms and expressions are to be construed when used in an Act of Parliament. The first rule is that general statutes will prima facie be presumed to use words in their popular sense. Meticulous criticism must not be allowed to wreck an enactment. If a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it. But it is to be construed in its popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it. But it is to be construed in its popular sense, meaning of course, by the words 'popular sense' that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. But if a word in its popular sense and read in an ordinary way is capable of two constructions it is wise to adopt such a construction as is based on the assumption that Parliament merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary powers. In other words the construction of words is to be adopted to the fitness of the matter of the statute.

10. Stroud in his Judicial Dictionary says that when the word 'null' is used, it does not authorise a partial annulment ; it must be entire. He further observes: Where a licence to cut timber provided that on breach by the licensee of certain conditions the licence was to be 'null and void' the latter expression was constructed as 'voidable' and the whole clause as an ordinary forfeiture clause, so that the grantor of the licence, having accepted rent after a breach of condition, must be treated as having waived the forfeiture'.

11. The Concise Oxford Dictionary gives the meaning of the word 'null' as 'not binding, invalid (often null & void), without character or expression; non-existent, amounting to nothing'. The same dictionary gives the meaning of the word 'void' as 'empty' vacant , invalid, not binding as null, ineffectual, useless'. This dictionary meaning is certainly the popular and general meaning given to the expression 'null and void'. When those words are used with reference to any transaction deed, decree etc., it is generally understood as being ineffective altogether and non-est.

12. The Supreme Court in Bengal Immunity Co. v. State of Bihar, : [1955]2SCR603 adopted the rule of construction of a statute laid down in Heydon's case (1584) 3 Co Rep 7a in the following terms:

'............. for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

1st . What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd what remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and

4th The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and 'pro privato commodo', and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, 'pro bono publico'.

In Sanghvi Jeevraj v. M. C. G. & K. M. W. Union, : (1969)ILLJ719SC the Supreme Court reiterated this rule of interpretation in Heydon's case and accepted by it in the Bengal Immunity Company case : [1955]2SCR603 .

13. We see no conflict, apparent or real, in the views expressed above or between the dictionary or popular meaning of the expression 'null and void' and the understanding of its scope and effect when it is used in different enactments. The sum and substance of all these rules is that a construction should be laid on the statute or expressions used therein which would suppress the mischief and defeat the defects which the law intended to suppress and defeat. It is true that in order to understand the intendment of the Parliament or legislature in making a law it might be useful to know the background, historical or otherwise, in which the law has come to be made. It is always essential to find out the remedy the legislature has resolved to give and the reliefs it intends to provide. For this, the whole statute will have to be understood. Taking a section here or an expression there out of their context would lead to the failure to appreciate the intention of the legislature and the true purport of the provisions of the statute.

14. Now in the light of what we have said above, let us examine the scheme of the Ceiling Act. Broadly speaking it deals with two categories of alienations. The first category are alienations made on or after 24th January , 1971 but before the coming into force of the prohibition of alienation law. The second category are alienation's made after the law and before the notified date i.e. 1-1-1975. Dealing with the first class of alienations, Section 7(1) of the Ceiling Act says that the burden of proving that those alienations have not been effected in anticipation of and with view to avoiding or defeating the objects of any law relating to the reduction on ceiling on agricultural holdings, is on the person who has alienated and if he is unsuccessful in rendering such proof, the transfer shall be disregarded for the purpose of the computation of the ceiling area. However when it comes to deal in Sub-section (2) with transfers made in contravention of the Prohibition of Alienation Act it declares them as null and void, notwithstanding anything in sub-section (1). The distinction between Sub-sections (1) and (2) appears to be very material. While Sub-section (1) provides for disregarding those transfers of the first category for the purpose of the computation of the ceiling area, Sub-section (2) declares the second category of transfers as null and void. It should be remembered that the Prohibition Alienation Act , 1972 has been repealed by virtue of Section 30 (2) of the Ceiling Act. This repealed law was in force from 2-5-1972. It prohibited alienations of holdings or parts thereof which were beyond the limits prescribed in Section 4 of that Act. While prohibiting such transfers it also took care to declare them as null and void. It further extended the scope of this prohibition even to transactions effected in execution of decrees or orders of a civil Court or awards or orders of a civil Court or awards or orders of any other authority. It did not stop with this either. The Legislature gave overriding effect to the provisions of that Act notwithstanding anything inconsistent therewith in any other custom, usage or agreement or decree or order of a Court or Tribunal or other authority. The same overriding force is given to the provisions of the ceiling enactment as well. That means, the provisions of these two laws prevail over any other enactment. There is no reason to suppose that the Civil Procedure Code, the Transfer of Property Act, the Contract Act are excluded from this overriding effect given to these laws.

15. And then, what is the background and the purpose for which these two laws were made by the Legislature of Andhra Pradesh. The Prohibition of Alienation Law was made to prohibit alienation of agricultural lands by persons who hold lands beyond the limits prescribed in Section 4. The Ceiling Act of 1973 is a successor Act of 1961 Act of similar nature , and has been made by the Legislature to consolidate an amend the law relating to fixation of ceiling on agricultural holding and taking over of surplus lands and to provide for the matters connected therewith. Prior to these Ceiling laws there was no limit on agricultural holdings. That was under the common law. By virtue of these Ceiling laws, the Legislature had intended to fix ceilings on agricultural holdings and to take over surplus lands. Before the consolidation and amendment of the Ceiling law of 1961 was made by the legislature it imposed prohibition on alienation of agricultural lands from 2-5-1972 under the Prohibition of Alienation Law. Since the Legislature has prohibited alienation of lands by persons whose holdings were beyond certain limits, it is logical to construe the words 'null and void' used in both the enactments as treating such transfers as ineffective for all purposes and not merely for the purpose of land reforms. In the first place, as we have pointed prohibition on alienations in certain cases was imposed and in the actual Ceiling law transfers in contravention of that law are declared null and void. That is why Sub-section (1) and (2) of Section 7 introduced the distinction between transfers after 24-1-1971 and transfers in contravention of Prohibition of Alienation Act. In the first case those transfers are only disregarded for computation of the ceiling area while in the latter case they are treated as null and void.

16. Again the Ceiling law in Sub-section (7) of Section 7 provides that if any question arises as to whether any transfer made on or after 2-5-1972 is null and void, the question shall be determined by the Tribunal which shall be constituted under the Act. It is true that by virtue of the proviso to Sub-section (8) of Section 7 an alienee, in whose favour transfer had been made in contravention of the Prohibition of Alienation Act, is liable to surrender the balance of the extent of land, if the total extent of land to be surrendered was not available with the transferor. But this is a provision which comes into play only after the Tribunal decides the question whether an alienation is null and void. That is specifically stated in the beginning of Sub-section (8) itself. It is also significant that the proviso to sub-s (8) imposes the liability to surrender land only on alienees who are in possession of such holdings. That means it postulates only cases where possession had already been given to the alienee. The Ceiling law provides for determination of ceiling area, surrender of excess lands, vesting of land surrendered, and also for prohibition of alienation of holdings after the notified date. Section 17 further declares that any alienation made or partition effected or trust created in contravention of that Section shall be null and void and any conversion so made shall be disregarded. Section 18 provides for declaration of future acquisitions as well. Thus the intendment of the Legislature in making these two laws, as can be gathered from the historical background and from reading the statutes as a whole is clear. It lays down that transfers made in contravention of the Prohibition of Alienation Act are totally ineffective. It is to convey that meaning the expression 'null and void' is used in respect of them, as distinct from the other category of transfers. When we bear in mind that the prohibition is extended even to transfers that have been effected in execution of a decree or order of a Civil Court, the purpose for which the law is made is very clear. Further, overriding effect has been given to these laws, Otherwise, if people go on carrying on transactions permitted under the other laws, like the Transfer of Property Act, the Contract Act, Civil Procedure Code etc., they are likely to defeat the very purpose for which the Land Reforms Acts are made. If Sri Subbarayan's limited construction of the words 'null and void' were to be accepted, it would lead to the result that though the Ceiling laws have been made and are in force, all transactions though contrary to them, dealing with lands can be carried on. That is the very danger which the legislation has sought to avoid and has, therefore, declared transfers in contravention of the Prohibition of Alienation Act as null and void. So, the expression 'null and void' used in these two enactments is to make totally ineffective all transfers made in contravention thereof. It is not possible to give any restricted or limited meaning to it.

17. Sundaramier and Co. v. State of Andhra Pradesh, : [1958]1SCR1422 , Inder Singh V. State of Punjab, : [1967]3SCR603 and Bhaskar v. State, : AIR1975Kant55 on which learned counsel relies have been decided in different contexts and deal with enactments of different nature. It is not permissible to adopt the constructions given therein to the expression 'null and void' used in the present enactments.

18. The statement of the law given by the Supreme Court in Kalwati v. Bisheswar, : [1968]1SCR223 appears to be more opposite. It said:

'There is a clear distinction between a transaction being void and one though valid and existent which is not to be recognised or acknowledged. The legislature also appears to be fully aware of the distinction between a void transaction and one which is not to be recognised.'

There the Supreme Court was dealing with the U. P. Zamindari Abolition and Land Reforms Act, 1951. In it the legislature declared certain transactions void and of no effect and for some other transactions it provided only a bar against the irrecognition. The Supreme Court held that the bar against recognition of a transfer cannot be understood that such a transfer is void. At the same time it construed the words 'any purpose whatsoever' used in Section 23 as laying down a bar against the recognition of transfers for all purposes under the Act.

19. It may be pertinent to refer in this context to Sub-section (5) of Section 7 of the Ceiling Act which says that where on or after the 24th of January, 1971, but before the notified date any person had been given in adoption, then the land held by such person immediately before the date of such adoption, shall, for the purpose of the Act, be deemed to be held on the notified date by the family unit of which he was a member immediately before such adoption. This Sub-section restricts its scope only to the purposes of the Act, while in contrast dealing with transfers made in contravention of the Prohibition of Alienation Act the Act considers them as null and void. We are, therefore, of the opinion that the Court sale in which the petitioner has become the auction-purchaser comes within the ambit of the prohibition of Alienation Act. Since a question has arisen as to whether that Court sale is null and void, only the Tribunal that is constituted under the Ceiling Act can decide it by virtue of the provisions of Section 7(7). The lower Court is, therefore, right in staying the delivery proceedings until the Tribunal decides the question.

20. The third submission of Sri Subbarayan is that in any case the objection cannot be raised at the stage of delivery of possession proceedings. If he so wanted, the judgment-debtor could have raised the objection when the land was sold or he could have applied for setting aside the sale under O. 21, R. 89 and 90. He should not be permitted to raise it at the late stage. He seeks to get some support from the Full Bench of this Court in Suryakanthamma v. Doryya, : AIR1965AP239 . That case has no bearing on the point which the learned counsel endeavours to make. The judgment-debtor there was found not to have saleable interest in the property sold in execution. The Full Bench held that the suit filed by the auction-purchaser for refund of purchase money was not maintainable. It is patent that it does not say anything which is partinent to the question raised before us. Here, the question is whether the Court sale in null and void. If it is a nullity, the execution Court can take notice of that circumstance at any stage. The Supreme Court expressed the opinion in Jai Narain v. Kedar Nath, : [1956]1SCR62 that the executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance, nobody but the Court executing the decree can determine it. If ultimately the Court sale is declared null and void by the Tribunal, then there would be no question of delivering the property to the auction-purchaser. He may be entitled in that eventuality to other remedies but not to delivery of possession of the land. So the Court below is right in staying the delivery of possession when the validity and legality of the sale was questioned. We are, therefore, of the opinion that this objection raised by the learned counsel is of no substance.

21. Thus, we cannot agree with any of the contentions raised in support of the revision petition. In our view, the stay granted by the lower Court is right. Consequently, we dismiss the revision petition. But having regard to the circumstances of the case, the parties will bear their own costs.

22. Revision dismissed.


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