K.B. Asthana, J.
1. The controversy in this appeal is in respect of title of the plaintiff Smt. Laxmi Devi to the property in suit which is a dilapidated house with some appurtenant land and, admittedly, at one time the disputed property belonged to Bhola Koeri and Smt. Rajwanti, the defendants.
2. The defendants were indebted to one Sitaram Sahu, who obtained a decree against them from the Small Cause Court. As will appear from the sale certificate, Ext. 1, on record, the decree of the Small Cause Court was transmitted for execution to the court of Munsif. In execution of the decree, Sitaram Sahu got the property in sale attached and at an auction held on 18-12-1959 purchased it. The Executing Court confirmed the sale on 3-2-1960 and a sale certificate was issued in favour of Sitaram on 16-4-1960. Smt. Laxmi Devi, the plaintiff, purchased, the property in suit from Sitaram Sahu, through a sale deed dated 7-6-1963. The defendants did not recognise the title of the plaintiff and tried to interfere with her enjoyment and trespassed on a part of the land by raising a wall and other constructions. The plaintiff then instituted the suit giving rise to this appeal for possession by demolition and for permanent injunction.
3. The learned Munsif dismissed the suit on the finding that the sale of immovable property in execution of the decree of the Small Cause Court being a nullity, no right or title vested in Sitaram Sahu and the plaintiff Laxmi Devi did not acquire any right or title through the sale deed executed by Sitaram Sahu.
4. On appeal by the plaintiff the learned Civil Judge, who heard the appeal, allowed it and decreed the plaintiff's suit. The learned Judge held that the defendants, not having raised any objection in the execution case and allowed the sale in favour of Sitaram Sahu, to become absolute, were barred by the principles of constructive res judicata from challenging the validity of the sale of the disputed property at the auction held in execution.
5. Learned Counsel appearing for the defendant-appellants contended that an attachment and sale of immovable property in execution of a decree of Small Cause Court being prohibited by law, the sale in execution of the decree would be without jurisdiction and a nullity and it will always be open to the defendants to challenge the validity of the sale and the bar of res judicata will not apply. It was also submitted that no plea having been raised on behalf of the plaintiff that the defence set up by the defendants was barred by res judicata, the Court below erred in law in allowing such a plea to be raised for the first time in appeal.
6. Prior to the amendment of Section 42 of the Civil Procedure Code, by the U. P. Civil Laws (Amendment) Act of 1954, a decree of Small Cause Court on being transferred to the Court of the Munsif for execution could be executed by attachment and sale of immovable property of the judgment-debtor. But after the amendment, in so far as U. P. State is concerned, since the Small Cause Court cannot proceed against the immovable property of the judgment-debtor in execution the transferee Court, i.e., the Court of the Munsif, also will have no power to attach and sell immovable property of the judgment-debtor in execution of the decree of the Small Cause Court. It has been so held by a DivisionBench of this Court in Bhukan Lal v. Ishwar Dayal Singh, AIR 1963 All 587.
7. The question then arises whether the sale held on 18-12-1959 in execution of the decree obtained by Sitaram Sahu from the Small Cause Court against Bhola Koeri and Smt. Rajwanti would be a nullity in the sense that in the eye of law it will be non est or will it be a mere illegality as submitted by the learned Counsel for the plaintiff-respondent. I am not inclined to subscribe to the extreme view that the sale held in the proceedings in execution of the said decree of the Small Cause Court should be treated as non est in the eye of law. The Munsif, to whom the decree was transmitted for execution, had jurisdiction to execute that decree. But in attaching and selling immovable property in execution, a procedure not permissible by law, the Munsif committed an illegality. No doubt the learned Munsif had no jurisdiction to proceed against the immovable property of the judgment-debtor in execution of the decree of the Small Cause Court, even so it is not open to the defendants now in the instant suit to question the title of the auction-purchaser and that of the plaintiff who acquired the disputed property from the auction-purchaser. In the case of Mohanlal v. Benoy Kishna, AIR 1953 SC 65, the Supreme Court held that where a judgment-debtor does not raise an objection in execution that the Court had no jurisdiction to execute the decree, the failure to raise such an objection which goes to the root of the matter, precludes him from raising the plea of jurisdiction on the principle of constructive res judicata after the property has been sold to the auction-purchaser. In the case before, me no objection was raised by the defendant-judgment-debtors in execution of the decree against them obtained by Sitaram Sahu from the Small Cause Court.
8. It was submitted by the learned Counsel for the defendant-appellant that in the execution case no notice was sent to the judgment-debtor under Order 21, Rule 66 of the Civil Procedure Code and that no opportunity was given to file any objection. I think that does not materially alter the situation in favour of the defendant-appellants. At any rate, they could have objected to the sale being held and, they should have raised objections at the time of its confirmation. The sale, having been confirmed in favour of the decree-holder-auction-purchaser, Sitaram Sahu and the sale certificate having been granted in his favour an absolute title vested in him in the properties sold. It has been observed by the Supreme Court in the case of Janak Raj v. Gurdial Singh, AIR 1967 SC 608 that a sale can only be set aside when an application under Rules 89, 90 or 91 of Order 21 has been successfully made. In the instant suit, the defendants cannot ignore that sale and ask the Court to go behind the sale certificate as they didnot raise any objection to the jurisdiction of the Court to proceed against the immovable property of the judgment-debtor.
9. Learned Counsel for the appellant referred to a decision, of a learned Single Judge of our High Court in Prabhulal v. Babu Singh, AIR 1964 All 34 in support of the proposition that the jurisdiction of a transferee Court to proceed against the immovable property of the judgment-debtor for executing a decree of the Small Cause Court having been taken away by an amendment of the law, the judgment-debtor would not be barred by the principle of constructive res judicata from raising the objection at a subsequent stage. I do not think learned Counsel for the appellant can derive any benefit from the ratio of the case cited. What was held by B. D. Gupta, J., in the case of Prabhulal, AIR 1964 All 34 (supra) was that the rule of constructive res judicata would not bar the raising of any objection based on a changed situation brought about by law in a subsequent application for execution though no such objection was raised in the earlier application for execution. The learned Judge had no occasion to consider whether such an objection could or could not be raised in a subsequent suit.
10. A reference was made by the learned Counsel for the appellant to the case of Ram Chandra Arya v. Man Singh, AIR 1968 SC 954 in support of his submission that the sale held in favour of Sitaram Sahu in execution of the decree against the defendants was a nullity and it was not necessary to resort to the provision of Order 21, Rules 89 and 90 to have the sale set aside. In the Supreme Court case cited the decree in execution of which the sale was held was found to be a nullity and that is why the Supreme Court held that resort to Rules 89 and 90 of Order 21 was not necessary to have the sale set aside. Here in the instant case it is not the case of any party that the decree obtained, by, Sitaram Sahu against the defendants in the Small Cause Court was a nullity.
11. I think the view taken by the Court below is correct as it is in consonance with the view of the Supreme Court in the case of Mohanlal, AIR 1953 SC 65 (supra).
12. For the reasons given above, I do not find any force in this appeal and dismiss it with costs.