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Shekh Rozan Vs. Jag Bahal Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1337 of 1965
Judge
Reported inAIR1973All542
ActsLimitation Act, 1963 - Schedule - Article 137; Code of Civil Procedure (CPC) , 1908 - Sections 11 - Order 21, Rule 82
AppellantShekh Rozan
RespondentJag Bahal Singh
Appellant AdvocateK.D. Pande, Adv.
Respondent AdvocateG.P. Bhargarva and ;A.N. Bhargava, Advs.
DispositionAppeal allowed
Excerpt:
(i) civil - period of limitation - article 137 of limitation act, 1963 - a sale in execution being inoperative and void - application by judgment debtor to recover the possession of the property which had been taken delivery of under a void execution sale - in time - when filed within three years of his dispossession. (ii) jurisdiction - section 11 and order 21 rule 82 of code of civil procedure,1908 - held, the sale of the immovable property by the executing court - without jurisdiction - lack of inherent jurisdiction - entire execution proceedings null and void - judgment debtor could object to his dispossession from the property - an objection within three years of the date of his dispossession to be filed. - - 4. the learned counsel for the respondent, however, urged that..........obtained possession of the said properties on 27th may, 1964. on 3rd august 1964 the judgment-debtor filed an application under section 47 read with section 151, c. p. c. alleging, inter alia, that as the decree was passed by the court of judge, small causes the execution thereof by attachment and sale of immovable property was not permissible and the proceeding for auction and delivery of possession were, therefore, illegal and that the entire proceedings of execution were taken surreptitiously without his knowledge. 2. the trial court accepted the contention of the judgment-debtor, set aside its order dated 7th may, 1964 whereby it had ordered for issuing warrant for delivery of possession to amin and rejected the execution application. it further ordered that the judgment-debtor.....
Judgment:

T.S. Misra, J.

1. This is an appeal by the judgment-debtor defendant. It arises in the following circumstances. Jag Bahal Singh filed a suit against Sheikh Rozan in the Court of Judge Small Causes, Jaunpur. It was decreed for Rs. 370 against the defendant on 27th July, 1956. The respondent got the decree transferred to the Court of Munsif, Shahganj, Jaunpur. On 27th January 1959 he filed an application for execution of the said decree in the court of the Munsif, Shahganj, by attachment and sale of one half share of the judgment-debtor in a house and a piece of land. Consequently the said properties were attached and ultimately sold by public auction in the execution of that decree on 21st July, 1959. The decree-holder himself purchased the share of the judgment debtor in that auction. The sale was confirmed on 26th September, 1959 and a sale certificate dated 9th April, 1964 was issued to the decree-holder auction-purchaser who thereafter obtained possession of the said properties on 27th may, 1964. On 3rd August 1964 the judgment-debtor filed an application under Section 47 read with Section 151, C. P. C. alleging, inter alia, that as the decree was passed by the court of Judge, Small Causes the execution thereof by attachment and sale of immovable property was not permissible and the proceeding for auction and delivery of possession were, therefore, illegal and that the entire proceedings of execution were taken surreptitiously without his knowledge.

2. The Trial Court accepted the contention of the judgment-debtor, set aside its order dated 7th May, 1964 whereby it had ordered for issuing warrant for delivery of possession to Amin and rejected the execution application. It further ordered that the judgment-debtor would be entitled to get back the possession of the properties in question. Against that decision the decree-holder preferred an appeal. The Appellate Court below having held that the objection filed under Section 47, Civil Procedure Code was barred by time, allowed the appeal, set aside the order of the Trial Court and dismissed the objections filed by the judgment-debtor. Aggrieved, the judgment-debtor has come to this Court in second appeal.

3. The learned counsel for the judgment-debtor appellant urged that the Appellate Court below erred in holding that the objections filed under Section 47, Civil Procedure Code by the appellant were barred by time. He contended that Article 137 of the Indian Limitation Act, 1963, which corresponds to Article 181 of the Indian Limitation Act, 1908 was applicable to the instant case and the judgment-debtor could file his objection under Section 47, Civil Procedure Code within three years from the date of dispossession. In support of his contention the learned counsel placed reliance on Ramanna v. Nallaparaju, AIR 1956 SC 87. There is force in this contention. In the case of Ramanna (supra) it was laid down that when a sale in execution was inoperative and void, an application by a judgment-debtor to recover the possession of properties which had been taken delivery of under a void execution sale would be in time under Article 181, if it was filed within three years of his dispossession. It was not until the purchaser acting under colour of sale interferes with his possession that the person whose properties have been sold is really aggrieved, and what gives him right to apply under Article 181 is such interference or dispossession and not the sale. In the instant case the judgment-debtor was dispossessed on 27th May, 1964. He filed the application under Section 47, Civil Procedure Code read with Section 151, Civil Procedure Code on 3rd August 1964 which was obviously within time. The finding of the Appellate Court below to the contrary is therefore, erroneous and cannot be sustained.

4. The learned counsel for the respondent, however, urged that the judgment-debtor having failed to challenge the jurisdiction of the transferee court at any stage during the execution proceedings was not entitled to raise the plea of jurisdiction at the stage when the sale had already been effected and confirmed and the possession of the property was delivered to the decree-holder auction-purchaser on the principle of constructive res judicata. This contention, however, las no force. On the date when the decree under execution was passed and when the said decree was put into execution the U. P. Civil Laws (Reforms and Amendment) Act, 1954 had already come into force and the power of the Transferee Court had been conterminous with the power of the transferor Court. As the decree in question was passed by the Court of Judge Small Causes the Munsif, to whom the decree had been transferred for execution, was, therefore, impressed with the power of Small Causes Court. Order 21, Rule 82, Civil Procedure Code prohibited the sale of immovable property in execution of a decree by the Court of Small Causes. Consequently, the Munsif, to whom the decree had been transferred for execution having the same power as that of the Court of Small Causes, could not order sale of immovable property. The sale of the immovable property by the Executing Court in the instant case was, therefore, completely without jurisdiction and the entire execution proceedings were null and void. (See Ram Lochan v. Mahadeo Prasad, AIR 1970 All 544 (FB)). As the entire execution proceedings were without jurisdiction, hence null and void, the judgment-debtor could ignore the execution including the attachment and sale of the property and could object to his dispossession from the property in pursuance of those proceedings after he was dispossessed. He could file an objection under Section 47, Civil Procedure Code within three years of the date of his dispossession as was held in the case of Ramanna (Supra). The judgment-debtor could, therefore, come to the court even after an order had been passed declaring the decree satisfied. The learned counsel for the respondent relied on Mohanlal v. Benoy Kishna, ATR 1953 SC 65 in support of his contention that even if the judgment-debtor had to raise an objection that the Execution 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 had been sold to the auction-purchaser who had entered into possession. The facts of Mohan Lal's case AIR 1953 SC 65 (supra) are, however, distinguishable from the facts of the present case. In the case of Ram Lochan AIR 1970 All 544 (supra) Mohan Lal's case was also referred to and distinguished on the ground that in Mohan Lal's case AIR 1953 SC 65 there was no lack of inherent jurisdiction. In the present case the Munsif lacked in inherent jurisdiction to execute the decree by attachment and sale of the immovable property.

5. In the result, the appeal is allowed with costs, the judgment and order passed by the appellate court below arc set aside and those passed by the trial court are restored.


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