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Kishanlal Vs. Kiranlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 56 of 1972
Judge
Reported inAIR1982MP43
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47; Madhya Pradesh Land Revenue Code, 1959 - Sections 152 and 165
AppellantKishanlal
RespondentKiranlal and ors.
Respondent AdvocateH.B. Mangal and ;R.K. Shinde, Advs.
DispositionAppeal dismissed
Cases ReferredAkhechand v. Motilal
Excerpt:
- - now, the copy of the executing court's order-sheet dated 1-12-1969 clearly shows that the judgment-debtor was present on that date and he had expressed that he did not want to press any of his objections. churaman singh, 1963 jab lj (sn) 159 that 'where the property is not absolutely unsaleable but the statutory protection is for the benefit of the judgment-debtor, he may well waive it and that, when he does so and creates a chargeon the property which would otherwise be protected against being taken in execution, he is estopped from invoking the statutory protection......of the sale proceedings. consequently, the judgment-debtor's appeal was dismissed, hence, now the present appeal.3. on this date of final hearing of present appeal, neither the appellant-judgment-debtor nor his counsel is present and. hence, the appeal has to be disposed of in their absence in the light of the grounds as mentioned in the memo of appeal. it has been urged in the memo of appeal that the lower appellate court was not competent to sidetrack the mandatory provisions of sections 165, 178 (3) and 152 (3) of the m. p. land revenue code 1959, andwhether or not the judgment-debtor had pressed his objections earlier, these legal issues were required to be determined by the lower appellate court inasmuch as there could be no estoppel or waiver against law. it has also been urged in.....
Judgment:

M.D. Bhatt, J.

1. This is iudgment-debtor's appeal against the lower appellate Court's order dated 3rd April, 1972, dismissing the appeal in the mat-ter of confirmation of sale by the executing Court, of his lands attached in execution.

2. In a money decree obtained against the present appellant-judgment-debtor KLshanlal by the decree-holder Kiranlal, proprietor of M/s. Dhanraj Chanchalmal, Naya Bazar, Lashkar, the present appellant-judgment-debtor's certain agricultural lands were attached in execution. After attachment, proclamation of sale was duly issued, and auction took place. In the auction, Krishna Pratap Singh purchased the lands in question, and sale was confirmed in his favour vide the executing Court's order dated 20th Mar. 1970. Against this confirmation of sale, an appeal had been preferred before the lower appellate Court challenging the executing Court's order of confirmation of sale on (some) grounds, the principal ground being that the lands in question were not liable for attachment and sale in view of the mandatory provisions of Sections 165, 178 (3) and 152 of the M. P. Land Revenue Code, 1959. The lower appellate Court after hearing the arguments of both the sides and on scrutiny of the record of the executing Court held that the judgment-debtor had conceded before the executing Court on 1-12-1969 that he did not want to press any of his objections whatsoever in the matter of attachment. Due to such a statement withdrawing his objections the sale had proceeded. The lower appellate Court equally held that the judgment-debtor did not raise any objections even at the time of issue of sale proclamation and the auction-sale and, therefore, the executing Court was right in confirming the sale in the absence of any objections existing at the relevant time of the sale proceedings. Consequently, the judgment-debtor's appeal was dismissed, Hence, now the present appeal.

3. On this date of final hearing of present appeal, neither the appellant-judgment-debtor nor his counsel is present and. hence, the appeal has to be disposed of in their absence in the light of the grounds as mentioned in the memo of appeal. It has been urged in the memo of appeal that the lower appellate Court was not competent to sidetrack the mandatory provisions of Sections 165, 178 (3) and 152 (3) of the M. P. Land Revenue Code 1959, andwhether or not the judgment-debtor had pressed his objections earlier, these legal issues were required to be determined by the lower appellate Court inasmuch as there could be no estoppel or waiver against law. It has also been urged in the memo of appeal that the grounds earlier raised in paras (c), (d) and (e) of the memo of appeal filed in the lower appellate Court had not been considered and decided by the lower appellate Court, for no justifiable reason.

4. I have considered these grounds as stated in the memo of appeal and have also heard the respondents' learned counsel. I have also perused the reconstructed, record of the proceedings of the executing Court. In the record of the executing Court, there is a copy of the judgment-debtor's application dated 10-2-1969, wherein, objections are found to be raised that the lands in question were not liable for attachment and sale under the provisions of law. Other legal objections and factual objection had equally been taken therein. The factual objection was that the judgment-debtor had only undivided half share in the attached lands in question and the whole property did not belong to him. Now, the copy of the executing Court's order-sheet dated 1-12-1969 clearly shows that the judgment-debtor was present on that date and he had expressed that he did not want to press any of his objections. Hence, the executing Court had passed the order that the objections filed earlier by the judgment-debtor, stood rejected as not pressed. Thereafter, there was proclamation of sale and, finally, the auction, and the sale was confirmed. In none of the subsequent hearings before the execut;ng court, the judgment-debtor appeared at all nor he took any objections. It was in these circumstances that the lower appellate Court, finding no merit on the appeal, had dismissed it, maintaining the executing Court's order of confirmation of sale.

5. It has been held by a Division Bench of this Court in Ramnarayan v. Churaman Singh, 1963 Jab LJ (SN) 159 that 'where the property is not absolutely unsaleable but the statutory protection is for the benefit of the judgment-debtor, he may well waive it and that, when he does so and creates a chargeon the property which would otherwise be protected against being taken in execution, he is estopped from invoking the statutory protection.' It was in relation to protection under Section 152 (3) of the Code and Section 165 (7) of the Code, that the Division Bench had observed that the principle of estoppel would apply. It has been further held in Kashiram v. Metal Trading Co., 1988 Jab LJ 438 by Bhave, J that 'where no objection to sale in execution proceedings is raised before the sale or confirmation of sale on the ground of prohibition under Section 165 (7) of the Code, constructive res judicata applies' The same principle is again reiterated in another subsequent decision of this Court in Akhechand v. Motilal, 1971 Jab LJ 968 wherein it has been held that if the judgment-debtor fails to object to the attachment and sale at the proper stage, the principle of res judicata applies. It has further been held that the question of attachment and sale being ab initio void or not, cannoi be attacked by the judgment-debtor under Section 47 of the Civil P. C. after its con-firmat;on.

Thus, in the instant case, the present appellant-judgment-debtor having declared in the executing Court on 1-12-1969, that he does not press h;s objections, meaning thereby that he had waived his objections, would be estopped from agitating those very objections any time later thereafter. The appellant-judgment-debtor has also not raised any objections subsequently at the stages of proclamation of sale, the actual-sale and so also before or at the time of confirmation of sale. The pr n-ciple of res judicata is therefore, attracted and, hence, now the appeliant-judg-ment-debtor stands estopped from reagi-tating the particular legal points which had been earlier waived by him as having not been pressed. So far as the grounds Nos. (c), (d) and (e) taken in the memo of appeal before the lower appellate Court are concerned, it may be observed that the grounds Nos. (c) and (d) were found to be equally contained in the judgment-debtor's initial objection dated 10-2-1969, and the said objections, as earlier stated, had not been pressed by the judgment-debtor, as is evident from the order-sheet dated 1-12-1969 of the executing Court. So far as the ground No. (e) taken in thememo of appeal before the lower appellate Court is concerned, the lower appellate Court was right in not considering it at all since such an objection had never been taken before the executing Court during the execution proceedings till the actual confirmation of sale.

6. In the result, thus, the judgment-debtor's present appeal being absolutely without any merit, is dismissed. The appellant shall pay the respondent's costs besides bearing his own. plea-ders's fee of Rs. 50/- is allowed for each set of respondents, if certified.


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