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Firm Roshak Lal Gulzari Lal and ors. Vs. Firm Ramesh Chand Vinod Chand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1146 of 1969
Judge
Reported inAIR1972All284
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 95; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 12 and 49
AppellantFirm Roshak Lal Gulzari Lal and ors.
RespondentFirm Ramesh Chand Vinod Chand
Appellant AdvocateK.B. Garg, Adv.
Respondent AdvocateRamesh Sharma, ;B.N.L. Katiyar and ;Shyam Narain, Advs.
DispositionRevision allowed
Excerpt:
property- delivery of possession of land of judgment debtor - order 21 and rule 95 of code of civil procedure, 1908 - (i) delivery during consolidation proceedings - buyer has no right to take delivery - held, court has no jurisdiction to order delivery. (ii) jurisdiction of court - section 49 of u.p. consolidation of holdings act - decree holder - auction - purchaser prayers for amendment of sale certificate - alleged substituted property - held, court has jurisdiction to entertain the prayer. - .....the date of sale, the two plots in question belonged to the judgment debtors. the title to the two plots sold thus vested in the purchasers on and from the date of sale. unfortunately, for the purchasers, however, in consequence of the proceedings under the act, the two plots in question, it appears, came to be allotted to the chak of some other person and in lieu of the said two plots, some other plot was allotted to the chak of the judgment debtors. it is clear, therefore, that the person to whom these two plots were allotted in the consolidation proceedings neither was nor is in occupation of the same on behalf of the judgment-debtors nor does he claim under a title created by the judgment-debtors subsequently to the attachment of the two plots. it is evident, therefore, that the.....
Judgment:

Kirty, J.

1. K. B. Asthana. J. has referred this revision for decision by a Division Bench, because in his opinion it involves questions of law of sufficient importance.

2. Firm Ram Chand Vinod Chand, the opposite party had filed a suit for recovery of some money against the applicants. This suit was decreed. The decree-holder firm then applied for execution of the decree by attachment and sale of two plots of agricultural land numbered 237/2 and 929. The said plots were attached on 19-12-1961 and ultimately sold at an auction held on 3-3-1964. The decree-holders were the purchasers. The sale was confirmed on 4-4-1964. Sale certificate was issued to the purchasers on 2-5-1967. The decree-holders as purchasers filed an application in the executing court under Order XXI, Rule 95 read with Section 151 of the Code of Civil Procedure praying that 'possession be delivered over plot No. 1173 (area 2 bighas 4 biswas and 7 biswansis), after amendment of the sale certificate. Along with this application the original sale certificate issued to the decree-holders appears to have been filed. In the application it was stated that in place of plot Nos. 237/2 and 929 which were attached and sold in execution proceedings plot No. 1173 had been allotted, to the judgment-debtors in consolidation proceedings. This application was opposed by the present applicants i. e. the original judgment-debtors on the ground that the decree-holders' application was not legally maintainable and that it was also barred by Section 49 of the U. P. Consolidation of Holdings Act. It was asserted that the property which was attached and sold and in respect of which the sale certificate had been granted to the decree-holders was the only property of which the decree-holders were entitled to be given possession. It was also asserted that the decree-holders had no legal right to get the sale certificate amended or to obtain possession of plot No. 1173 and that their remedy, if any could be by a regular suit in a competent court. This application has been allowed by the executing court, which has directed the sale certificate to be amended by the substitution of plot No. 1173 in place of the two plots originally mentioned therein. The court has also ordered possession of the said plot to be delivered to the decree-holders.

On behalf of the applicants it was urged that the executing court had no jurisdiction either to make any amendment in the sale certificate duly issued tothe opposite parties on 2-4-67, or to order delivery of possession to the purchasers of any property other than the property which was sold in respect of which the sale certificate was issued. It was also contended that the application made by the opposite parties was barred by Section 49 of the U. P. Consolidation of Holdings Act 1953 (hereinafter referred to as the Act) and that the remedy of the decree-holder auction purchasers, if any would be to make an application under Section 12 of the aforesaid Act or to institute a regular suit in a competent court of law for such relief as they may be entitled to in the circumstances of the case. On the other hand, it was contended on behalf of the opposite parties that in the consolidation proceedings plot No. 1173 was allotted to the applicants in lieu of and in substitution for the original plots numbered 237/2 & 929 of which they were owners. Since the property which was sold and purchased by the decree-holders was substituted by another property the decree-holders were entitled to have the sale certificate corrected and also to have possession of such property delivered to them. These contentions require an examination of the relevant provisions of the Code of Civil Procedure Code (hereinafter referred to as the Code) concerning execution of decrees and, in particular, execution of decrees for the payment of money as also of some provisions of the Act.

3. Section 51 of the Code empowers the executing court to order execution of the decree:

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require. The mode of execution in the instant case was by attachment and sale of two specified plots of land of the judgment debtors. As required under Rule 13 of Order 21, the decree-holders had to and did specify the necessary particulars and the numbers of the two plots in their application under Rule 11(2) of the Order for the execution of the decree. The Court admitted the application and ordered the decree to be executed accordingly under Rule 17(4). In due course the two plots were attached as required and in the manner provided by Rule 54. Thereafter a proclamation was made of the intended sale under Rule 66(1). The sale proclamation had to be and was drawn up in accordance with Sub-rules (2), (3) and (4) of Rule 66. In it the necessary particulars of the two plots to be sold were specified as required by Sub-rule (2). The proclamation was made and published inthe manner laid in Rule 67 and the two plots, attached and proclaimed to be sold, were sold on 3-3-1964 by public auction and purchased by the decree-holders. The sale was confirmed on 4-4-1964 under Rule 92. Under Rule 91, a purchaser has been given a right to make an application to the Court to set aside the sale on the ground that the judgment debtor had no saleable interest in the property sold. No such application was made by the purchasers in the instant case either before the confirmation of the sale or at any time thereafter. Indeed, it is not their case that judgment-debtors had no saleable interest in the two plots. The sale having become absolute, the Court as required under Rule 94 granted a certificate to the purchasers specifying the property sold, viz. the two specified plots concerned, in Form No. 38 given in Appendix E to the Code. Rule 95 of Order 21 of the Code provides as follows: 'Where the immoveable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and, if need be, by removing any person who refuses to vacate the same'.

4. This rule makes it clear that possession can be ordered to be delivered by the Court of the immovable property sold where such property is in the occupation of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property.

5. From the provisions of the Code referred to in the foregoing paragraph, it will be clear that an executing court can cause only such immovable property to be attached, as are specified in the execution application by the decree-holder under Rule 11(2) read with Rule 13 of Order 21 and that only such property can be sold after the drawing up of the sale proclamation. It is also equally clear that the sale of the property actually sold can be confirmed and in respect of that property only can a sale certificate be granted under Rule 94. Under Rule 95, no other property can be ordered to be delivered to the purchaser. There does not exist any provision in the Code empowering the executing court to amend or alter the sale certificate except by way of correction of clerical or accidental errors. Ithas absolutely no power to direct or order substitution of an entirely different property for the property which had been actually attached and sold and in respect of which only the sale certificate could be and has been granted.

6. On a sale being confirmed, the title to the property sold vests under Section 65 of the Code in the purchaser from the time when the property was sold and not from the time when the sale became absolute. In the instant case, there is no dispute that on the date of sale, the two plots in question belonged to the judgment debtors. The title to the two plots sold thus vested in the purchasers on and from the date of sale. Unfortunately, for the purchasers, however, in consequence of the proceedings under the Act, the two plots in question, it appears, came to be allotted to the chak of some other person and in lieu of the said two plots, some other plot was allotted to the chak of the judgment debtors. It is clear, therefore, that the person to whom these two plots were allotted in the consolidation proceedings neither was nor is in occupation of the same on behalf of the judgment-debtors nor does he claim under a title created by the judgment-debtors subsequently to the attachment of the two plots. It is evident, therefore, that the purchasers have no right under the Code to apply for delivery of the two plots in question to them under Rule 95 of Order 21 of the Code nor has the executing court any jurisdiction to order delivery thereof to be made by the person to whom the plots have been allotted to the purchasers. After a careful scrutiny of all the material provisions of the Code, we have come to a definite conclusion that the application made by the decree-holder auction-purchasers for amending the sale certificate by substituting therein the plot allotted to the judgment-debtors in consolidation proceedings in place of the two plots which he owned and which were attached and sold in execution of the decree against them and which have been allotted to some other person having an independent right, was not legally maintainable. Equally, the prayer for delivery of possession of such plot was also incompetent. The executing court had no jurisdiction to grant either of the two prayers made by the decree-holder-auction-purchasers.

7. The application made by the decree-holder-auction-purchasers was opposed by the judgment debtors also on the ground that it was barred by Section 49 of the Act. This section bars the exercise of jurisdiction by civil or revenue courts to entertain any suit or proceeding with respect to rights to such land with respect to which a proceeding could or ought to nave been taken underthe Act. In so far as the prayer of the decree-holder-auction-purchasers for amendment of the sale certificate is concerned, obviously Section 49 could not be a bar. But in so far as delivery of the substituted or allegedly substituted property is concerned, apparently Section 49 would bar the exercise of jurisdiction by the executing court in that behalf. We do not, however, consider it necessary to express any definite or firm opinion on this point because in the view we have already taken in regard to the competence of the executing court under the code to entertain or grant the prayer made by the decree-holder-auction-purchasers in the instant case, the question whether the bar under Sec, 49 of the aforesaid Act applies or not does not really arises.

8. In support of the contention that Section 49 of the Act barred the application of the decree-holder-auction-purchasers, the learned counsel for the applicants submitted that the remedy of the opposite parties, if any was to make an application to the appropriate consolidation authority under Section 12 of the Act and that this being so, the bar under Section 49 applied. This proposition, although controverted by the learned counsel for the opposite parties, prima facie, appears to us to be correct. We need not, however, express any definite opinion on this question also because as, already indicated, this question also does not appropriately arise. For the same reason, we refrain from expressing any opinion as to whether the opposite parties have any other remedy by way of a suit founded on the vesting of the title to the two plots in question in them on 3-3-1964.

9. In the result, the revision is allowed and the order of the court below is set aside. The application made by the opposite parties in the executing court is dismissed. In the circumstances of the case, we direct the parties to bear their own costs, both in the court below as also in this Court.


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