1. The decree-holders respondents obtained a decree from the Court of Small Causes, on the 20th of November, 1918, against the applicant Sat Dhar. In execution of that decree they attached a grove situated in Bundelkhand. One Muhammad Yasin, on the strength of a sale deed from the judgment-debtor, raised certain objections that the property did not belong to the judgment-debtor. His objections were allowed. The decree-holders then instituted a regular suit for a declaration that the sale deed in favour of Muhammad Yasin was fictitious and that the property belonged to their judgment-debtor and was liable to attachment and sale in execution of their decree. In this suit Sat Dhar was also impleaded, but apparently did not put in an appearance. This suit was decreed on the 16th of February, 1920, and an appeal from that decree was also ultimately dismissed. The decree-holders had a declaration against Muhammad Yasin and Sat Dhar that the property belonged to Sat Dhar and was liable to attachment and sale in execution of their decree.
2. After Muhammad Yasin had been got rid of, Sat Dhar put in a new set of objections, on the 4th of September, 1920, urging that the property was governed by the Bundelkhand Land Alienation Act (II of 1903). On the date fixed for hearing, Sat Dhar did not appear and his objections were dismissed for default on the 4th of November, 1920. On the 22nd of January, 1921, he put in an application for restoration of his objections, but that application was dismissed on the same date. After this, on the 27th of January, 1921, the grove, was sold and purchased by the decree-holders themselves, and on the 1st of March, 1921, this sale VN-as actually confirmed. It does not appear that Sat Dhar put in any formal application for setting aside the sale dated the 27th of January, 1921. He, however, on the 9th of March, 1921, appealed from the order dismissing his application for restoration. His appeal was allowed on the 29th of March, 1921, and the case was remanded. The result of nil these proceedings was that the objections which Sat Dhar had filed on the 4th of September, 1920, were revived and had to be disposed of on the merits.
3. On the 5th of July, 1921, the court of first instance allowed his objections and, holding that the property being governed by the Bundelkhand Land Alienation Act was not liable to be sold, set aside the sale. The decree-holders appealed from this order, and the lower appellate court, by an order dated the 23rd of December, 1921, agreed with the finding of the first court that the grove was not saleable in execution of the decree. The learned Judge thought that that part of the Munsifs order which had directed the setting aside of the sale was 'unnecessary.'
4. The judgment-debtor has come up in revision and wants to have the modification made by the lower appellate court corrected.
5. On the findings of the court below, there can be no doubt whatsoever that the land in question is land which comes within Act II of 1903. The finding of the lower appellate court is that the spaces lying between the trees growing on this land are used as pasture land and are sometimes actually cultivated for raising crops or fodder. The land is not occupied by any building and is used for purposes subservient to agriculture. It is admittedly situated in Bundelkhand. It is clear, therefore, that it falls within the meaning of the definition of land as given in Section 2(2) of Act II of 1903. This finding ?of the lower appellate court has not in. any way been challenged on behalf of the respondents.
6. I have to consider two main points in this revision:
1. The effect of the declaratory decree, dated the 16th of February, 1920.
2. The effect of the order confirming the sale, dated the 1st of March, 1921.
7. On behalf of the respondents it is strongly contended that in face of the declaratory decree obtained against Sat Dhar, it is no longer open to Sat Dhar to say that the land is such as is-not liable to be sold. It is contended that the former decree declaring that the land is liable to be sold in execution of the decree in question is final and estops the judgment-debtor from raising any objection to the same. This contention, however, has no force. The point has been the subject of previous0 decisions and is covered by clear authorities. In the case of Hanuman Prasad Narain Singh v. Harakh Narain (1919) I.L.R. 42 All. 142, a Division Bench of this Court laid down that even where a. mortgage decree for the sale of land situated in Bundelkhand had been obtained, it was open to the judgment-debtor to raise the objection that the land being not saleable, could not be sold. The ratio decidendi of that case was that it is the duty of the execution court to see whether it has jurisdiction to sell it, and that, therefore, where a sale is prohibited by law, the execution court cannot proceed with the sale even though there is a decree for its sale. It was held that in such a case no question of estoppel against the defendant really arises. There is also the Pull Bench case, viz., that of Katwari v. Sita Ram Tiwari (1921) I.L.R. 43 All. 547, which is analogous. A mortgage decree for sale of occupancy holding had been obtained against the tenant, and yet the Pull Bench allowed the judgment-debtor to raise the plea in the execution department that the property was not. saleable in view of the provisions of Section 20 of the Agra Tenancy Act (No. II of 1901).
8. The Pull Bench has clearly laid down the rule that where: the court has no jurisdiction to sell some property, it is immaterial whether a decree for sale of that land has been previously obtained and is in execution. I am, therefore, of opinion that the decree-holders cannot take advantage of th-i. effect of the declaratory decree of the 16th of February, 1920. T may further point out that that decree was in substance a. decree against Muhammad Yasin, and Sat Dhar was a mere pro forma defendant. Apart from that, the decree-holders themselves did not raise this plea in the courts below, as there is no reference to any such plea in either of the judgments.
9. The next point is whether the subsequent confirmation of the sale of the 1st of March, 1921, has any effect on these objections. I am of opinion that that confirmation cannot have any adverse effect. In the first place, the effect of the remand by the lower appellate court was to revive the objections of the 4th of September, 1920. The judgment-debtor is entitled to have his objections heard on the merits as they stood on that date. No sale had taken place till then. It is clear, therefore, that in view of the findings of the courts below that the land was not saleable, the execution court had no jurisdiction whatsoever to sell it. The objections of Sat Dhar to that effect were well-founded and should have been allowed. I, therefore, accept the finding of the lower appellate court that the grove in question was not at all saleable in execution of the respondents' decree, and that the execution court had no jurisdiction whatsoever to sell it. If, therefore any sale did take place, it was a mere nullity and could in no sense pass title to the decree-holders as purchasers.
10. On behalf of the respondents it is contended that this Court should not express any opinion as to whether the sale of the 27th of January, 1921, is liable to be set aside or not. I do not propose to leave things in any confusion. I have already held that the court had no jurisdiction to sell the property and that the sale was a nullity. When the sale itself is void, and not voidable, no question of its being liable to be set aside really arises. In the case of Khiali Ram v. Rao Zahur-ul-lah Khan weekly Notes 1905 p. 153, the interest of Z was attached in execution of a decree and Z objected to the sale on the ground that it was his exproprietary tenancy. His objection was overruled and the property was sold and purchased by another person. In the meantime Z preferred an appeal which was decreed and the land was declared to be his exproprietary tenancy. It was held that the land not having been liable to sale, the sale was a nullity and the purchaser took nothing by his purchase. I may also point out that in the case of Hanuman Prasad Narain Singh v. Harahh Narain (1919) I.L.R. 42 All. 142, the lower appellate court had actually, in reversing the decree of the first court, set aside the sale and that order was upheld by the High Court. I adopt the form which the final order on appeal in this Court took in that case and I hold that the objection raised with regard to the property not being saleable was a valid objection and the property was not liable to sale in execution of the decree. As the order for sale was an invalid and an illegal order, the sale which has taken place in pursuance of that order must fall to the ground and must be deemed to be a nullify. The judgment-debtor absented himself and allowed his objection to be dismissed for default, and then did not put in any formal application requesting the court not to confirm the sale when he ultimately appealed to the Judge after the confirmation. But for these omissions the case might not possibly have been protracted. For the above reasons I direct that the parties should bear their costs of this application. Holding that the subsequent sale is a nullity, I uphold the order directing the release of the attachment.