R.B. Misra, J.@mdashI have had the advantage of reading the judgment prepared by my brother Sinha, J. With all respects, however, I find myself unable to concur with the view taken by my learned Brother.
2. The present Special Appeal came up for hearing before a Division Bench, As on one of the points involved in the case there was conflict of judicial opinion, the Division Bench referred the case to a larger Bench. This is how this appeal came up before this Bench.
3. In order to appreciate the points involved in this case a few facts would be necessary. Matadin, the father of Ram Lochan appellant, was a fixed rate tenant of the plots in dispute. One Ram Naresh. obtained a money decree against Matadin from the Court of Judge, Small Causes in the year 1953. He sought to execute the decree by attachment and sale of the immovable property of the judgment-debtor. As under the rules the Small Cause Court had no jurisdiction to execute the decree by attachment and sale of Immovable property, the decree-holder applied for the transfer of the decree to the Court of Munsif, Varanasi, for execution. The transferee Court ordered execution by sale of the plots in dispute and transferred the decree for auction sale to the Collector, Accordingly the plots in question were put to auction sale and were purchased by the decree-holder himself on 20th July, 1956. The sale was confirmed on 29th August, 1956, and sale certificate was issued on 8th September, 1956. The Dakhalnama on the record indicates that the decree-holder obtained possession on 14th March, 1957. He got his name recorded in the revenue papers also on the basis of the auction sale. On 4th March, 1960, the decree-holder-auction-purchaser sold the said plots to respondents Nos. 2 to 6. The judgment-debtor meanwhile died leaving behind Ram Lochan appellant as his heir and legal representative. The suit giving rise to the present appeal was filed by Ram Lochan for declaration that he was the Bhumidhar in possession of the plots in dispute and prior to him his father was the Bhumidhar in possession of the plots in dispute till his death, and, in the alternative, for possession In case he (Ram Lochan) was found to be out of possession. He alleged that defendant No. 1 (Ram Naresh) got the suit land sold in execution of the money decree of the Small Cause Court, though such a decree could not have been executed by attachment and sale of Immovable property by the executing Court after the enforcement of U. P. Civil Laws (Reforms and Amendment) Act (XXIV of 1954). He also alleged that the judgment-debtor had absolutely no knowledge of the sale proceedings, and no notice was served on him, and the decree-holder managed to get the property in dispute sold for a paltry sum of Rs. 360-14-0 though it was worth Rs. 6,000. It was further alleged that the judgment-debtor, and after him the appellant, had all along been in possession of the suit property in spite of the auction sale and the Dakhalnama.
4. The claim was resisted by the respondents on grounds, inter alia, that the suit was barred by Section 47, Civil P. C., barred by time, barred by res judicata, estoppel and acquiescence, that the Revenue Court had no jurisdiction to try the suit, that the plaintiff was not a Bhumidhar nor in possession, and that respondents Nos. 2 to 6, being the transferees for value in good faith, without notice, were entitled to the protection of Sections 41 and 51 of the Transfer of Property Act.
5. The Assistant Collector, First Class, by and large, accepted the defence and dismissed the suit. On appeal, the Additional Commissioner reversed the decree and the findings of the trial Court, and decreed the suit. He held that the entire execution and sale proceedings had taken place behind the back of the judgment-debtor (Matadin) with the result that the land in suit was sold away for a paltry sum of Rs. 360/- and odd, that the execution Court had no jurisdiction at all to order the sale of immovable property and so the auction sale was void in law. Consequently the interest of Matadin judgment-debtor was not extinguished in the suit land and he continued in actual cultivatory possession till 1960. It was further found that the suit was not barred by constructive res judicata, and that respondents Nos. 2 to 6, the transferees from the decree-holder, forcibly took possession over the land in suit in 1368 F., and that the suit was well within time.
6. The respondents unsuccessfully took up the matter in Second Appeal to the Board of Revenue. The Board of Revenue upheld the finding of the Additional Commissioner that the sale by the execution Court was void. It however, held that the decree-holder got possession in pursuance of the decree, and the Dakhalnama dated 14th March, 1957 was correct but the possession of Ram Naresh of the suit land was in pursuance of a void sale. The Board further held that the question of irregularities, if any. In the conduct of the auction sale could have been raised only in execution Court u/s 47, Civil P. C. and not by a regular suit. In the end, however, the Board observed that--
"Although I differ with Additional Commissioner on various arguments advanced by him in his judgment, I agree with him in the ultimate conclusion arrived at by him and hold that defendant-appellants Nos. 1 to 5 are clearly liable to ejectment as trespassers."
A writ petition was filed by the contesting respondents challenging the orders of the Board of Revenue and the Additional Commissioner which was allowed by a learned Single Judge on 23rd April, 1959. The learned Single Judge relied upon the case of "
7. Before embarking upon the discussion of the points raised by the counsel on either side it would be proper at this stage to refer to the relevant provisions of the CPC and the U. P. Civil Laws (Reforms and Amendment) Act.
8. Section 38, Civil P. C. provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
9. Section 39, Civil P. C. provides for the transfer of a decree by the Court which passed it to another Court, either on the application of the decree-holder or of its own motion. It also provides the circumstances in which the decree could be transferred.
10. Section 42, Civil P. C. deals with the powers of the transferee Court in executing a transferred decree. The section as it stood prior to its amendment by the State of Uttar Pradesh, vide U. P. Act 24 of 1954, which came in force on 30th November, 1954, read thus:--
"The Court executing a decree sent to it shall have the same powers in executing such decree as if It had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court In the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself."
But after its amendment by the U. P Act 24 of 1954, Section 42, Civil P. C. reads thus:--
"The Court executing the decree sent to it shall have the same powers in executing such decree as the Court which passed it. All persons disobeying or obstructing the execution of decree shall be punished by such Court in the same manner as If it had passed the decree and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself."
In substance, under the unamended Section 42, Civil P. C. the transferee Court executing the decree sent to it had the same powers in executing such decree as if the decree had been passed by itself; but after its amendment by U. P. Act 24 of 1954 the powers of the transferee Court have been made conterminous with the powers of the transferor Court,
11. Order 11, Rule 82, Civil P. C. provides that sale of Immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.
12. Section 51, Civil P. C. provides procedure in execution. In so far as is material to our purpose, it reads thus:
"Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, 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;
(bb) by transfer other than sale, by attachment or 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; Provided ....."
13. Section 3 of the U. P. Civil Laws (Reforms and Amendment) Act, which saves certain vested rights is in these terms:--
"3. (1) Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any release or discharge of or from any debt, decree, liability, or any jurisdiction already exercised, and any proceeding instituted or commenced in any Court prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such Court.
(2) Where by reason of any amendment herein made in the Indian Limitation Act, 1908, or any other enactment mentioned in column 2 of the Schedule, the period of limitation prescribed for any suit or appeal has been modified or a different period of limitation will hereafter govern any such suit or appeal, then, notwithstanding any amendment so made or the fact that the suit or appeal would now lie in a different Court, the period of limitation applicable to a suit or appeal, as aforesaid, in which time has begun to run before the commencement of this Act, shall continue to be the period which but for the amendment so made would have been available,"
14. Sri R.N. Singh, appearing for the appellant, contended that the Munsif who executed the decree had no jurisdiction, after the amendment of Section 42, Civil P. C. by Act 24 of 1954, to execute the decree by attachment and sale of Immovable property. After the amendment in 1954 the power of the transferee Court has been made conterminous with the power of the transferor Court -- the power of the Small Cause Court in the present case. In view of Order 21, Rule 82, Civil P. C., the Small Cause Court has no power to execute the decree by attachment and sale of Immovable property. The transferee Court also, being impressed with the same power, had no jurisdiction to execute the decree by attachment and sale of Immovable property. The learned counsel further contended that the change brought in Section 42, Civil P. C. by Act 24 of 1954 relates to the procedure, and the decree-holder cannot claim any vested right in a course of procedure. Therefore, the learned Single Judge was not correct in holding that the decree-holder had a vested right to realize his money by attachment and sale of Immovable property, which could not be taken away by the amendment of Section 42, Civil P. C. in view of the saving provision contained in Section 3 of Act 24 of 1954. He relied upon
15. From the report of the above case it is not clear whether the'' proceedings there arose out of a case instituted prior or subsequent to the Amendment Act (No. 24 of 1954). When that case was cited before another Division Bench in a case reported in
16. The learned counsel for the appellant next relied upon the case of "
"Section 3 of the Amendment Act saves the right already acquired. It cannot be held that as soon as a decree-holder obtains a decree he acquires a right in all the modes of execution prescribed at that time by the Code of Civil Procedure. He merely has a right to execute his decree and, as such, execution can only proceed according to the procedure prescribed for execution at the time when the execution is taken out and it cannot, therefore, be said that at the time of obtaining the decree, the decree-holder acquires a right to get Immovable property sold by having his decree transferred to a Court other than a Court of Small Causes."
It was further held In that case that:--
"The modes prescribed by Section 51, Civil P. C. are always subject to other provisions of the Code and Section 42 is one of such provisions."
17. The learned Single Judge, however, allowed the writ petition relying on the
"Amendment brought in Section 42 by the Amendment Act of 1954 apparently relates to change in the power of the executing Court, but it does hit the substantive right of the decree-holder inasmuch as it places a bar against him to proceed against the Immovable property of the judgment-debtor. How a decree may be executed may be a question purely of procedure, but whether a decree-holder can realize his decree by sale of Immovable property cannot be said to be a mere matter of procedure. The right to realize the decree money from the Immovable property of the judgment-debtor is a substantive right and cannot be taken, away by an amendment which provides that execution cannot be proceeded with by sale of immovable property unless the statute specifically provides so and takes away that right. The amendment, therefore, in so far as it affects the right of the decree-holder who had filed suit prior to the getting into force of the Amendment Act or obtained decree prior to that date, cannot act adversely against the interest of such decree-holders by affecting their substantive right"
18. The decision in
19. The Division Bench in
"The right to recover the decretal amount from Immovable property is similar to a right of appeal, and what has been said of a right of appeal applies to such a right also."
According to the Division Bench, this right was saved by Section 3 of U. P. Act XXIV of 1954 and the same could not be affected by the amendment of Section 42, Civil P. C. in 1954. Reliance was placed on Section 51, Civil P. C. which, according to the Division Bench in
20. Sri. Sankatha Rai for the respondents supported the judgment of the learned Single Judge on the ground that the right conferred by Section 51, Civil P. C. is subject to such conditions and limitations as may be ''prescribed''. ''Prescribed'' is a defined term. According to Section 2(16), Civil P. C. "Prescribed" means prescribed by rules. He contends that the right conferred by Section 51, Civil P. C. is not subject to Section 42 or any other section of the Code. It is subject only to the rules prescribed. Thus the right conferred by Section 51, Civil P. C. to the decree-holder to realise his decretal amount by attachment and sale of Immovable property is not to be affected in the least by the amendment of Section 42 in 1954. He took support from the Division Bench case of
"To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
The principle enunciated by the Privy Council in 1905 AC 369 (supra) had been applied in India for the last over 50 years, and the Supreme Court, on the principle of stare decisis, by majority accepted the principle of law laid down in that case. The only ground for following 1905 AC 369 (supra) was the principle of stare decisis. Hon''ble Venkatarama Ayyar, J. in his dissenting judgment observed:
"It may look a daring and almost famous adventure to canvass the correctness of the decision in 1905 AC 369 (supra), especially when it has been followed by Courts in this country for well-nigh half a century. But with all respect which I have for the decision of a tribunal so august as the Privy Council and of a Judge so eminent as Lord Macnaghten, I am of opinion that the decision in question cannot be supported on principle, that it is not warranted by the authorities, and cannot, therefore, be followed."
With profound respect I may say that weighty reasons have been given in the dissenting judgment of Hon''ble Venkatarama Ayyar, J. for not accepting the principle laid down in 1905 AC 369 (supra). In my opinion the principle enunciated in it as accepted by the. Supreme Court in
21. I would, therefore, in agreement with brother Dayal, J. in Ram Anjore Pande''s case
22. If right to execute a decree by attachment and sale of Immovable property is a vested right, it would be saved by the saving Sec, 3 of U. P. Act 24 of 1954. Section 3 of U. P. Act 24 of 1954 protects the rights "already acquired." Section 51 relates to procedure, and no person can have a vested right in a course of procedure. If an Act alters the mode of procedure, he has no other right than to proceed according to the altered mode. The general principle certainly is that alteration in a procedure is retrospective unless there be good reason against it. There is no question of saving any right when the decree-holder had no vested right in the course of procedure. The amendment brought in Section 42, Civil P. C. has only changed the power of the transferee Court. Prior to the amendment of the section the transferee Court could execute a decree as if it had been passed by itself. But after the amendment the power of the transferee Court is the same as that of the transferor Court in matters of execution. It is open to the legislature to regulate the power of a Court.
23. As indicated earlier, the plots in dispute were put to auction sale on 20th July, 1956 and the sale was confirmed on 29th August, 1956 long after the enforcement of the U. P. Civil Laws (Reforms and Amendment) Act, 1954. On the date when the decree was put into execution the Amendment Act had already come into force and the power of transferee Court had been made conterminous with the power of the transferor Court. As the decree in question was passed by Small Cause Court, the Munsif to whom the decree had been transferred for execution was therefore impressed with the power of Small Cause Court. Order XXI, Rule 82, C.P.C. already quoted, prohibits sale of Immovable property in execution of a decree by a 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. Thus the sale of Immovable property by the executing Court in this case was completely without jurisdiction and the entire execution proceedings were null and void.
24. The learned counsel for the appellant next contended that the learned Single Judge was not correct in holding that the suit was barred by Section 47, C.P.C. In the view taken by me that the Munsif had no jurisdiction to execute the decree and the entire execution proceedings were without jurisdiction, it was not at all necessary for the judgment-debtors to have filed any objection u/s 47, C.P.C. He could ignore the execution including the attachment and sale of the property. If the Court had the jurisdiction to attach and sell the Immovable property and the appellant had sought to challenge the sale on the ground of irregularity, certainly Section 47, C.P.C. would have stood as a bar. But as indicated above, the Munsif in the present case had absolutely no jurisdiction to execute the decree by attachment and sale of Immovable property after the amendment of Section 42, C.P.C. in 1954.
25. The counsel for the appellant also relied upon "1969 ALJ 222" Jangi Misra v. Muneshar. A learned Single Judge of this Court held in that case that:--
"When a Court lacks jurisdiction it is corum-nonjudice and its judgment and decree is a nullity. It is the Court''s duty to see to its own competency. This duty will be circumvented by calling it a discretion and refusing to entertain the question of jurisdiction on the ground that the defendant had not raised the objection in the trial Court or it conceded that the Court had jurisdiction."
Though the facts of that case were slightly different, but the principle laid down in that case can safely be relied upon in the instant case.
26. Confusion is apt to arise in not keeping in mind the difference between complete absence of jurisdiction in a Court to pronounce judgment or to execute a decree and where a Court in the undoubted exercise of its jurisdiction proceeds, to act irregularly or even illegally in direct violation of the provisions of the statute. In the present case it has been found, while dealing with the first point, that the power of the learned Munsif had been completely taken away by, the amendment of Section 42, C.P.C. in 1954 to execute a decree of the Small Cause Court by attachment and sale of Immovable property. There was thus a complete want of jurisdiction.
27. In
"Where the Court had jurisdiction to sell, a sale held in contravention of some provision of law can be avoided before its confirmation by an application u/s 47 without it being necessary for the applicant to show more than that the provision of that law has been contravened. But after confirmation, the sale can only be avoided if the applicant establishes that owing to fraud or other reason he was kept in ignorance of the sale proceedings preliminary to sale."
28. Sri Sankatha Rai relied upon
29. The facts of the Supreme Court case cited above are distinguishable from the facts of the present case. In that case the Calcutta High Court on its original side passed a decree and transmitted the same to the Asansol Court through the District Judge of Bardwan, and the Asansol Court thereupon acquired jurisdiction to execute the decree against the property situate within its territorial limits. The application for execution made by the decree-holder was dismissed for default, and the Asansol Court sent to the High Court what in form purported to be a certificate u/s 41 of the Code. The decree-holder filed another application on 24th November, 1942 to the Asansol Court for execution of the decree against the same judgment-debtors with the same prayer for realization of the decretal amount by sale of the same property as mentioned in the previous execution case. The contention of the judgment-debtors in that case was that the certificate sent by the Asansol Court to the High Court on 11-3-1932 was intended to be, in form as well as in substance, a certificate u/s 41 of the Code and that thereafter the Asansol Court ceased to have jurisdiction as execution Court as there was no fresh transmission of the decree of the High Court. Consequently all subsequent proceedings in the Asansol Court were void and inoperative for lack of inherent jurisdiction in that Court. It was in these circumstances that the Supreme Court held:--
"An omission to send a copy of the decree or an omission to transmit to the Court executing the decree the certificate referred to in Clause (b) of Order XXI, Rule 6 does not prevent the decree-holder from applying for execution to the Court to which the decree had been transmitted. Such omission does not amount to a material irregularity within the meaning of Order XXI, Rule 90 and as such cannot be made a ground for setting aside a sale in execution."
The Supreme Court also applied the principle of Section 11 as the judgment-debtors failed to raise an objection at the time when the second execution application was made or when notice of the execution proceeding was served upon the judgment-debtors. Failure to raise an objection precludes him from raising the plea of jurisdiction on the principle of res judicata. There was no lack of inherent jurisdiction in that case as we find in the instant case.
30. Though not cited here, before the Additional Commissioner reliance was placed on
"When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated when it arises between the parties to a decree only by an application u/s 47 and not in a separate suit"
Plainly the facts of that case were distinguishable. There the sale was not warranted by the terms of the decree, but there was no lack of inherent jurisdiction in the executing Court to execute the decree.
31.
"It is a fundamental principle, well established, that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings."
32. Sri Sankatha Rai relied upon
"A sale attended with an irregularity is quite distinct from a sale that is null and void; the former exists and is in force so long as it is not set aside, whereas the latter does not exist in the eye of law at all. A sale attended with an irregularity has to be set aside; whereas in a null and void sale only a declaration to that effect may be necessary, if at all. Order XXI, Rule 90 does not deal at all with a sale that is null and void or with a declaration that it is so."
33. From the above observation It is apparent that in case of a sale which is a nullity only a declaration is needed, if at all, that it was a nullity. The case, in (my opinion, does not help Sri Sankatha Rai, firstly, because in that case there was no lack of inherent jurisdiction in the executing Court and, secondly, the Court did not hold that a separate suit for such a declaration was barred.
34. The learned counsel for the appellant next relied upon a Full Bench decision of Lahore High Court "AIR 1944 Lah 294". Surindar Nath v. Ram Sarup. It was held in that case that where the party to the suit against whom a suit had been dismissed does not choose to go to the executing Court either because it has no knowledge of what is happening there or because, having knowledge, he feels that he should wait and see what ultimately happens, then in his case it cannot be said that by not going there the question is constructively decided against him. Such a person has two concurrent remedies and he can choose either of them. If he acquires knowledge that his property is being wrongfully taken in execution of the decree, he may choose the expeditious remedy of going to the executing Court. But if he chooses the remedy u/s 47, C.P.C., it will bar his subsequent suit for the same relief. On the other hand, if either after having acquired knowledge or through ignorance he takes no steps to object to the wrongful sale of the property by the executing Court, on no principle of law can a separate suit to take possession of the property wrongfully sold by the executing Court be held to be barred. In the instant case it has already been mentioned that the judgment-debtor had absolutely no knowledge of the execution proceedings, and the whole thing was so done by perpetrating fraud. So the Full Bench decision of the Lahore High Court fully applies to the present case.
Sri R.N. Singh further contended that the Collector, to whom the decree had been transferred for the auction sale, was not a Court and, therefore, no objection could have been filed u/s 47, C.P.C., nor would Section 47 stand as a bar to the present suit. In support of his contention he relied upon
35. Sri Sankatha Rai for the respondent contended that the Additional Commissioner has committed an error in recording a finding of fraud when the parties were not at issue on that point, and this is why the Board of Revenue did not approve of that finding. I feel hesitation in accepting this contention. It is true that no specific issue of fraud had been framed by the trial Court, but the defendant had no doubt about the case set up by the plaintiff about fraud and want of notice, and no prejudice has been caused, because both the parties have adduced evidence. The Additional Commissioner has accepted the evidence produced by the plaintiff in preference to the evidence produced by the defendant and, therefore, the finding of fact recorded by the Additional Commissioner, which was the last Court of fact, could not have been set aside by the Board of Revenue, and indeed the Board of Revenue has not set aside the finding recorded by the Additional Commissioner. If authority be needed
"Where the parties went to trial fully knowing the rival cases and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case or that there was that mistrial which vitiates proceedings. The suit could not be dismissed on the narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer."
36. For the reasons given above I would allow the appeal and set aside the order of the Single Judge dated 23rd April. 1969. In the circumstances of the case I would make no order as to costs.
S.D. Khake, J.
37. I agree.
Sinha, J.
38. This is a Special Appeal directed against an order dated April 27, 1969, passed by a learned Single Judge of this Court in Civil Misc. Writ No. 350 of 1968.
39. The facts leading to this appeal can briefly be stated as under:
40. Mata Din, father of Ram Lochan appellant, was a fixed rate tenant of the plots in dispute. One Ram Naresh Singh obtained a money decree against Mata Din on 18th February, 1953, from Judge Small Cause Court, Varanasi, in Suit No. 847 of 1953. The decree was transferred to the court of Munsif, Varanasi for execution. The execution court ordered sale of the plots in dispute and the decree was transferred for that purpose to the Collector. The plots were eventually sold in public auction and were purchased by Ram Naresh Singh decree-holder on 20th July, 1956. The sale was confirmed on 29th August, 1956, and on 8th September, 1956, the requisite sale certificate was also issued. Ram Naresh Singh obtained possession over the plots on 14th March, 1957, and his name was also recorded in the Revenue papers. On 4th March, 1960, Ram Naresh Singh sold the said plots to respondents Nos. 2 to 5.
41. Mata Din having died, his son Ram Lochan (hereafter to be called the appellant) filed a suit u/s 229 of the U. P. Zamindari Abolition and Land Reforms Act for declaration that he was bhumidhar of the plots in dispute and for possession over the same. It was, inter alia, pleaded by him that the sale of the plots in execution of the decree of the Court of Judge, Small Causes was without jurisdiction and a nullity and further that the execution proceedings were bad in law having been conducted without any notice to or any knowledge of the judgment-debtor.
42. The suit was contested by the respondents.
43. The trial Court held that the suit was barred by Section 47, C.P.C. and by the principles of constructive res judicata, that the revenue Court had no jurisdiction to grant the relief prayed for, that respondents Nos. 2 to 5 were bona fide purchasers in good faith for value without notice to the plaintiff''s title, and that the suit was also barred by limitation.
44. The present appellant assailed the decree of the trial Court before the Commissioner. The Additional Commissioner, who heard the appeal, reversed the finding of the trial Court on all the points and further held that the executing court had no jurisdiction to order the sale of the plots in execution of the decree of the court of Judge Small Causes. In the result, the Additional Commissioner allowed the appeal and decreed the suit.
45. Against the decision of the Additional Commissioner, the present respondents went up in Second Appeal before the Board of Revenue. The Board of Revenue, vide its decision dated 16th October, 1967, held that the Additional Commissioner wrongly took cognizance of the irregularities in sale, as that point could only be agitated before the execution court u/s 47, C.P.C. The Board, however, further held that the sale of the plots in dispute in execution was null and void because It took place after the commencement of the U. P. Civil Laws Amendment Act, 1954, which amended Section 42, C.P.C. as a result of which the executing court carried the same powers as the court which passed the decree. Since the decree, in the Instant case, was passed by the Court of Judge, Small Causes, the Board of Revenue held that the sale of the plots in dispute was null and void. In the result, the Board of Revenue dismissed the appeal.
46. Against the decision of the Board of Revenue, the respondents filed Civil Misc. Writ No. 350 of 1968. It was decided by a learned Single Judge of this Court, Vide his judgment dated April 23, 1969, The learned Single Judge, relying on a decision of a Division Bench of this Court in case
47. The present Special Appeal is directed against the aforesaid order of the learned Single Judge.
48. The special appeal first came up for hearing before Seth and Khare, JJ. It was found by them that there is apparent conflict in the views expressed in the cases
49. The principal question for consideration in this appeal is whether in a decree passed by the Court of Judge Small Causes before the commencement of U.P. Civil Laws Amendment Act, 1954, the court to which the decree was transferred for execution can order sale of immovable property?
50. For a proper appreciation of the point in issue, it will be necessary to notice Section 42, Civil P. C. as it stood before the commencement of 1954 Amendment Act and as it stood thereafter. Before its amendment by the 1954 Act, it ran as follows:--
"The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself."
51. After the amendment of Section 42, C.P.C., it read as follows:--
"The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree and its order in executing such decree shall be subject to the same rules in respect of appeals as if the decree had been passed by itself."
52. Another provision which requires consideration at this very place is Section 3 of 1954 Act, which reads as follows:--
"Section 3. Savings--
(1) Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered or any right, title, obligation or liability already acquired, accrued or incurred or any release or discharge of or from any debt, decree, liability or any jurisdiction already exercised and any proceeding instituted or commenced in any Court prior to the commencement of this Act shall notwithstanding any amendment herein made continue to be heard and decided by such Court.
(2) Where by reason of any amendment herein made in the Indian Limitation Act, or any other enactment mentioned in column 2 of the Schedule, the period of limitation prescribed for any suit or appeal has been modified or a different period of limitation will hereafter govern any such suit or appeal, then notwithstanding any amendment so made or the fact that the suit or appeal would now lie in a different court, the period of limitation applicable to a suit or appeal as aforesaid, in which time has begun to run before the commencement of this Act, shall continue to be the period which but for the amendment so made would have been available."
53. A perusal of Section 3 of 1954 Act makes it abundantly clear that the 1954 Act was not intended to have any bearing on such rights, if any, as accrued to any person before the passing of the 1954 Act.
54. The question that then poses for consideration is whether any right can be said to have accrued to a person who obtained a money decree from a Court of Judge Small Causes before, the commencement of 1954 Act
55. Section 51, C.P.C. says that a court may on the application of the decree- holder order execution on the decree, inter alia, by attachment and sale of any property. Section 60, C.P.C. states that among other things, lands and houses are also liable to attachment and sale in execution of a decree. Further, a decree passed by a Court of Judge, Small Causes can be transferred to any other court u/s 39, C.P.C. Order XXI Rule 82, C.P.C. provides that every court other than a Court of Judge Small Causes can order attachment of Immovable property in execution of a decree. Therefore, a cumulative reading of Sections 39 51 60 and Order XXI, Rule 82, C.P.C. clearly points to the conclusion that if any person had obtained a money decree from a Court of Small Causes before the commencement of 1954 Act, he could get his decree transferred for execution to another Court and could seek its execution by attachment and sale of Immovable property.
56. The matter can be better understood by an illustration:
"''A'' obtained a money decree from a court of Small Causes in January, 1954. The 1954 Act came into ''force on 22nd November, 1954. The question is could he or could he not apply any time before 22nd November, 1954, to get his decree transferred to the court of a Munsif and seek its execution by attachment and sale of Immovable property." ''
57. There can be no two opinions that before 22nd November, 1954, ''A'' did have the right to get his decree transferred to the court of a Munsif and to seek its execution by attachment and sale of Immovable property. This position was also not controverted before us. The question before us is would there be any difference in that right of ''A'' with the commencement of the 1954 Act on November 22, 1954 despite Section 3 of that Act. The relevant part of Section 3 of the Act can be extracted as follows:--
"Any amendment made by this Act shall not effect ..... any right, obligation or liability already acquired, accrued or incurred."
58. As shown above, a right had accrued to ''A'' (on the passing of the decree) to seek its execution against the immovable property of his judgment-debtor and the judgment debtor had suffered a liability of the decretal amount being realised from him through attachment and sale of his immovable properties on the option of the decree holder. The latter may or may not be true, but, in my view, there can be no doubt about the proposition that a right had already accrued to ''A'' before the commencement of the 1954 Act to put his decree in execution by attachment and sale of immovable property of the judgment-debtor. Section 3 of the 1954 Act clearly saved that right of the decree holder.
59. In the case before us, the decree had been obtained by Ram Naresh on 18th February, 1953, viz. several months before the commencement of the 1954 Act; therefore any time between 18th February, 1953, and 22nd November, 1954, Ram Naresh could get his decree transferred to a regular court and could seek its execution by attachment and sale of immovable property of the judgment debtor. He could do so because a right had accrued to him on the passing of the decree. Once it is accepted that a right had accrued to Ram Naresh on the passing of the decree to seek the execution thereof by attachment and sale of immovable property, that right was clearly saved to him by virtue of Section 3 of the 1954 Act It cannot, therefore, be accepted that the sale of the plots ordered in execution of the decree obtained by Ram Naresh was without jurisdiction or that it was a nullity.
60. Learned counsel for the appellant next contended before us that even if the executing court had jurisdiction to order sale of immovable property in execution of the decree of the Court of Small Causes, the sale was void for reasons of fraud. It was contended that the Additional Commissioner accepted the contention of the appellant that the sale was invalid for reasons of fraud and the Board of Revenue had no jurisdiction to disturb that finding of fact in second appeal.
61. The submission made by the learned counsel for the respondent in reply to the above contention is two-fold:--
(1) That since no issue was framed either by the trial court or by the lower appellate court on the point of fraud, it was not open to the Additional Commissioner to give any finding on the point of fraud while dealing with the appeal.
(2) That, in any case, the point of any irregularity or illegality having been committed in the sale of the property could not be agitated by a separate suit and that it could be agitated only before the execution court which ordered the sale of the plots in dispute u/s 47, C.P.C.
62. Taking up the first part of the submission, a perusal of the judgment, of the trial court does show that no issue had been framed by the trial court on the point of fraud. That point appears to have been taken up for the first time in appeal before the Additional Commissioner. To point whether there was any fraud at any stage of execution or sale was a point of fact. It may be stated that the appellant''s case on the point of fraud is confined to this only that the sale had been conducted without any knowledge thereof to the judgment-debtor. If an issue had been framed by the trial court on the point of fraud, the respondents could lead evidence to show that due notice and information, as required under the law, was given to the respondent. Since no issue was framed, the respondents could not lead any evidence on that point. It was, therefore, not appropriate for the Additional Commissioner to take the respondents by surprise in appeal and to give a decision on that point without affording them an opportunity to lead evidence in rebuttal of the allegation of fraud. If the Additional Commissioner felt that a finding on fraud was necessary, two courses were open to him. He should either have framed the issue and recorded the evidence of both the parties on that issue himself, or, should have framed an issue and remitted It to the trial court for a finding. Neither of the two courses was adopted by the Additional Commissioner. It is, therefore, obvious that the course followed by the Additional Commissioner has resulted in prejudice being caused to the respondents. As for the criticism that the Board of Revenue in second appeal could not assume jurisdiction to decide whether there had been any fraud or not, the Board of Revenue has not given a finding on that point. All that the Board of Revenue has said is that the Additional Commissioner was wrong in criticising sale for the reason of any irregularities, for, in the opinion of the Board of Revenue, that point could only be agitated by filing objections u/s 47, C.P.C. The Board of Revenue thus considered only the legal aspect of the Additional Commissioner having given a finding on the point of fraud. It cannot be said that the Board of Revenue travelled outside its jurisdiction in doing so. In any case, for the reasons already stated, the appellant cannot fall back upon the finding of the Additional Commissioner on the point of fraud to assail the sale of the plots in dispute.
The second part of the submission made by the learned counsel for the respondent also carries substance. A perusal of the statement of the plaintiff''s case, as contained in the judgment of the trial court, would show that the appellant did not plead any fraud having been practised at any stage during the trial of the suit. The allegation made is that the land in suit was sold without the knowledge of the appellant''s father. The allegation of fraud made by the appellant thus relates to the stage of the execution of the decree and not to any prior stage.
63. Now, It may be recalled that the decree in the instant case was sent to Collector for sale of immovable property. In exercise of its powers u/s 70, C.P.C., the State Government has framed Rules laying down the manner in which the Collector should conduct himself in the matter of sale of agricultural property ordered by any court in execution of a decree. These rules are contained In Chapter XL of the U. P. Revenue Manual. Para 969 states that if, after the decree has been transmitted, any claim to the property ordered to be sold or any objection to the order of the court directing the sale be preferred to that court, it may, if it sees fit, recall the decree and proceed to dispose of the claim or objection. In the event of the objection being upheld, the matter ends. In the event of the claim or objection being rejected, the decree is retransmitted to the Collector for sale of the property. Sub-para (2) of Para 969 states that if such claim or objection is preferred to the Collector, the latter shall refer the claimant or the objector to the court which ordered the sale.
Para 976 states that after the decree has been received for sale of the agricultural property, the Collector shall, without delay, appoint a day for hearing any representations which the parties to the decree or any of them, or any person interested in the execution of the decree, may desire to make as to the manner in which the decree shall be executed, and shall cause a written notice to be served, on each of the parties of the day so fixed.
Para 983 (which is analogous to Order XXI, Rule 66, C.P.C.) states that when the Collector decides to sell property in execution of the decree transferred, he shall issue a proclamation of the intended sale under paragraph 987 and further that for the purpose of ascertaining the matters to be specified in the proclamation, he shall, after notice to the decree-holder and to the judgment-debtor, inquire into the points, specified in that paragraph.
Para 984 of the Revenue Manual states that after hearing the decree-holder, the judgment-debtor and such other persons as may be summoned under Para 983, and after examining the documents, if any, the Collector may, subject to the provisions contained in Paragraph 984-A, modify the lots of sale and the reserved prices proposed by him. The Collector is required by Paragraph 984 to record a finding on each of the points specified in paragraph 893. Para 988 (which is and logos to Order XXI, Rule 68, C.P.C.) states that no sale, without the consent in writing of the judgment-debtor, can take place until after the expiration of thirty days calculated from the date on which the copy of the proclamation has been affixed in the court-house of the Collector. ''
Para 999 (which is analogous to Order XXI, Rule 87, C.P.C.) states that where agricultural property has been sold in execution of a decree, the judgment-debtor or any person deriving title through the judgment-debtor, or any person holding an interest in the property, may apply within thirty days from the date of sale to have the sale set aside on his depositing with the Collector the amount specified in sub-paragraphs (a) and (b) thereof.
Para 1000 (which is analogous to Order XXI, Rule 90, C.P.C.) states that where any agricultural property has been ''sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interest are affected by the sale, may apply to the Collector, within 30 days from the date of sale to set aside the sale on the ground of a material irregularity or of fraud in publishing or conducting it
Para 1001 of the U. P. Revenue Manual is analogous to Order XXI, Rule 92, C.P.C. It states that where no application is made under paragraph 999 or paragraph 1000, or where such application is made and disallowed, the Collector shall make an order confirming the sale, and thereupon the sale shall become absolute. Sub-para (3) of Para 1001 states that no suit to set aside an order made under this rule shall be brought by any person against whom such order is made.
64. A reference to the various paragraphs of Chapter XL of the U. P. Revenue Manual, as mentioned above, thus shows that the Collector has been bestowed with all the powers of an executing court in the matter of publishing the sale, in the matter of conducting the sale and in the matter of hearing and disposing of objections against it. The rules make it obligatory on the part of the Collector that if no objections are filed before him, either under para 999 or under para 1000, he shall make the sale absolute. Sub-para (3) of para 1001 clearly states that once the sale has been made absolute, no suit can be brought for getting that order set aside. These rules having been framed u/s 70, C.P.C. carry statutory effect. It cannot be said that they are mere rules of guidance.
65. Now, it may be noted that the appellant''s allegation is that the sale had been conducted without any notice or knowledge thereof to his father, the judgment-debtor. The objection in effect is that a fraud was committed in publishing and conducting the sale. This was covered by Para 1000 of the U. P. Revenue Manual and it was necessary for the appellant or his predecessor to have filed objections before the Collector under that para. Sub-para (3) of Para 1001 of the U. P. Revenue Manual clearly bars a separate suit being filed to assail that sale.
66. But, even if it be accepted for a moment that the allegations made by the appellant do not fall either under para 999 or under para 1000 of the U. P. Revenue Manual, they were clearly covered by Section 47(1), C.P.C. which states that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
67. The point whether the sale had taken place without the knowledge of the appellant''s father and whether it became illegal or inoperative on that account was a matter relating to the execution of the decree and was, therefore, covered by Section 47, C.P.C.
68. In case
"It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application u/s 47, Civil P. C. and not in a separate suit."
69. In
"The inapplicability of Section 47 to the proceedings out of which the appeal has arisen was also raised before us, but that contention is equally unsubstantial because the question whether the decree was completely satisfied and therefore the court became functus officio is a matter relating to execution, satisfaction, and discharge of the decree."
70. The Supreme Court then referred to the case Mahomed Sikri Sahib v. Madhava Kurup, AIR 1949 Mad 809 in which it was held that where the Executing Court was not aware of the amendment of the Rent Restriction Act by which the execution of a decree was prohibited and passed an ejectment decree against a tenant, the Executing Court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree could be set aside. The Supreme Court went on to observe:
"The prohibition is equally puissant In the present case and Section 47 read with Section 151 would be equally effective to sustain the order of redelivery made in favour of the respondent."
71. In case
"Various High Courts have similarly held that when a sale in execution of a decree whose validity is not questioned is attacked on the ground that it is not merely irregular but illegal and void that must be done by a proceeding u/s 47 and not by an independent suit''." (The underlined (here in '' '') is by me.)
72. In case
73. In case
74. Now, if Section 47, C.P.C. can be applicable to a case where the court orders redelivery of possession of the property, the delivery of which had been made by it in execution of a decree without jurisdiction, and, if Section 47, C.P.C. can apply to a case where sale is a nullity for reasons of non-compliance of Rules 84 and 85, C.P.C., I see no reason why Section 47 should not apply to a case where sale in execution is assailed on the ground that it had been held without the knowledge of the judgment-debtor,
75. Learned counsel for the appellant urged that in the instant case, the sale was held by the Collector and while dealing with the sale of the property, the Collector did not act as a Court and as such no objections against the sale could be filed before the Collector. It was contended that the suit was, therefore, not barred either by para 1001(3) nor by Order XXI, Rule 92(3), C.P.C., nor by Section 47, C.P.C. Reliance for this contention was placed on the case
76. In an earlier Full Bench case
"Much stress was laid on Government rule corresponding to Order 21, Rule 90(1), the suggestion being that it covered cases of general fraud. The rule covers cases of fraud of a particular kind in "publishing" or "conducting" sale and not such wide collusion and fraud as are alleged in the present case."
77. It was thus in the context of wide allegations made by the plaintiff in the case of
78. The case of
79. Reference was also made on behalf of the appellant to the case of
80. In view of paras 969, 999, 1000 and 1001 of the U. P. Revenue Manual, I am of the view that the Collector did have the jurisdiction in the present case to decide whether there had been any fraud or other illegality in the matter of sale of immovable property. But even if the Collector did not have the jurisdiction, the court which ordered the sale in execution of the decree had the jurisdiction to decide it u/s 47, C.P.C.
81. The application for execution had been moved by the respondent in the court of Munsif and since the execution had been asked for by attachment and sale of immovable property, it was transferred to the Collector. Despite the fact that the execution had been transferred to the Collector for sale, the court of Munsif continued to be the court "executing the decree" within the meaning of that expression as contained in Section 47, C.P.C. Objections assailing the sale on the ground of fraud could, therefore, be filed before the Munsif even after the sale had been held and had been confirmed. It cannot be argued that the objections assailing the sale could not be filed before the Munsif after confirmation of sale because no execution was pending before the Munsif at that time. In case,
"The principle of Section 47 is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed shall be determined in the execution proceedings and not by a separate suit. It follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise."
82. It can also not be successfully urged that by the time the appellant came to know about the sale, the limitation for filing objections had expired and he could not, therefore, file any objections before the Munsif. The question was considered at length in the case of
"It is 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."
83. Thus, having carefully examined the submissions made on either side and the relevant decisions, I am of the opinion that the suit filed by the appellant was barred by the rules contained in Chapter XL of the U. P. Revenue Manual and failing that by Section 47, C.P.C.
84. Learned counsel for the appellant next contended that there was no error of law or fact apparent on the face of the record and the learned Single Judge should not, therefore, have interfered in exercise of writ jurisdiction to set aside the order of the Board of Revenue and that of the Additional Commissioner. Learned counsel contended that the present appeal should be allowed on that score.
85. It is true that In writ proceedings, this court should not interfere unless there is an apparent error of law or fact resulting in injustice to either party. A perusal of the judgment of the Board of Revenue against which the writ petition was filed, clearly shows that a substantial point of law was involved, viz., whether immovable property could be sold in execution of a decree passed by the Court of Judge, Small Causes. The Board of Revenue arrived at a wrong decision on that point of law and in the result, confirmed the order of the Additional Commissioner who had decreed the appellant''s suit. The decision was to result injustice as the respondents would have been deprived of the property in suit in consequence of that decision. It cannot, therefore, be said that this was not a fit case for assuming jurisdiction in writ jurisdiction.
86. The last point which was urged before us was that the learned Single Judge while deciding the writ petition should only have quashed the order of the Board of Revenue and of the Commissioner and should not have proceeded to say that the judgment of the trial court be restored. The objection is purely technical, for, even if the learned Single Judge had merely quashed the orders of the Board of Revenue and that of the Commissioner without saying anything further, it would have carried the same effect, viz., that of restoring the order of the trial court. In any case, we can modify the order of the learned Single Judge so as to exclude that direction contained therein;
87. In view of the reasons stated above, I am of the view that this appeal should fail and the order passed by the learned Single Judge in so far as it sets aside the orders of the Additional Commissioner and of the Board of Revenue should be maintained.
By The Court
88. The appeal is allowed. The order of the learned Single Judge dated 23rd April, 1969, is set aside. In the circumstances of the case we make no order as to costs.
