Allahabad High Court
Gaon Sabha Through Its Pradhan, Sri ... vs Additional District Judge/Spl. Judge ... on 26 September, 2006
Equivalent citations: 2007(1)AWC63
JUDGMENT S.U. Khan, J.
1. In this writ petition Hon'ble R.B. Misra J. passed several orders (on the order sheet) from 10.8.2001 till 23.11.2004 in respect of service upon respondents. District Magistrate and other officials were also directed to effect service and file affidavit of compliance, which was accordingly done. District Magistrate and Sub-Divisional Magistrate were also directed to be made parties in the writ petition. However at the time of arguments on 2.8.2006 no one appeared on behalf of the respondents except respondent No. 14 Ram Swaroop one of the auction purchasers on whose behalf Sri A.K. Sharma learned Counsel has argued the case. Sri M.M.D. Agarwal learned Counsel appeared on behalf of the petitioner and learned standing counsel represented the State authorities. On 2.8.2006 all the substitution applications were allowed after hearing learned Counsel for the parties and judgment was reserved (order on the order sheet).
2. This writ petition discloses a shocking state of affairs. Agricultural land belonging to the State and under the management of the Gaon Sabha admeasuring about 80 acres has been sold in auction only for Rs. 400/- for realization of some costs payable by Gaon Sabha petitioner to the respondents.
3. Respondents 3, 4 and 5 Ram Narain, Sadan Sahkari Samiti and Manphool obtained a decree of costs amounting to Rs. 410.20/- against Gaon Sabha Makrandpur, district Etawah in O.S No. 170 of 1964. For realization of the costs, Execution case No. 95 of 1968 was filed praying therein that for realization of the aforesaid costs' Plot No. 2/admeasuring 32.15 acres and Plot No. 14/1 admeasuring 48.08 acres belonging to Gaon Sabha concerned be attached and sold.
4. The other contesting respondents of this writ petition purchased the land in dispute in auction on 28.11.1969. Gaon Sabha filed objections under Section 47 C.P.C against the said auction on 11/12 February 1970. The objections under Section 47 C.P.C numbered as Misc. Case No. 19 of 1970 were allowed by Munsif, Etawah, Court No. 5 through order dated 15.5.1981. The learned Munsif held that price of Rs. 1/- per bigha was shocking (80 acres come to about 400 Kuchcha bighas). Trial court further held that execution application was filed after one year of the decree hence by virtue of Order 21 Rule 22 C.P.C it was necessary to issue notice to the judgment debtor which was not done (Before the amendment of C.P.C. in the year 1976 notice was necessary to be issued if execution was filed after one year from the date of decree. Through Act No. 104 of 1976, the said period of one year has been substituted by two years). Against the said order Civil Revision No. 69 of 1981 was filed by Ram Babu and Brij Bhushan Lal only (respondents 1A and 2). The other auction purchasers respondents were impleaded as proforma opposite parties. A.D.J./Special Judge (E.C. Act), Etawah through judgment and order dated 25.7.1987, allowed the revision, set-aside the order of the trial court dated 15.5.1981 and rejected the objections filed by Gaon Sabha through its Pradhan under Section 47 C.P.C. hence this writ petition by Gaon Sabha.
5. The first ground taken by the learned A.D.J. for allowing the revision was that "from perusal of the objections filed under Section 47 C.P.C. it is apparent that the objection was filed by the Pradhan on behalf of the Gaon Sabha in his personal capacity and not in the capacity of representative of Gaon Sabha and the resolution to this effect was neither passed nor copy thereof was enclosed with the objections hence the institution of the objection was illegal and it must have been summarily rejected". Learned A.D.J. also referred to paragraphs 128 to 132 of Gaon Samaj Manual.
6. After holding that objections were filed by the Pradhan on behalf of Gaon Sabha objections should have been held to be maintainable. Gaon Sabha is always represented by Pradhan. It is not understandable that what the learned A.D.J meant by first saying that objections were filed by the Pradhan on behalf of Gaon Sabha and then saying that objections were filed by the Pradhan in his personal capacity. This observation is self-contradictory. In any case even if there was some technical flaw in filing the objections its benefit could not be given to the respondents to usurp the property of the Gaon Sabha. The court is required to be more concerned about the substance than mere technicalities. The Supreme Court in United Bank of India v. Naresh Kumar AIR 1997 SC 3 has held that suit filed by the Bank shall not fail due to absence of signature of proper officer in plaint. Same principle will apply in the instant case also; even if it is held that there was some defect in the representation of Gaon Sabha as mentioned in the application under Section 47 C.P.C. However I do not find any substantial defect in the description of Gaon Sabha in the application under Section 47 C.P.C. Gaon Sabha could sue through Pradhan and it in fact filed objections through Pradhan.
7. The other reason given by the learned A.D.J. Sri Narendra Singh was that execution had been struck off in full satisfaction on 5.1.1970 hence objection under Section 47 C.P.C. was not maintainable. This ground is also not tenable. Objections under Section 47 C.P.C. are quite maintainable even after satisfaction of the decree. Moreover Gaon Sabha had contended and it was accepted by the trial court that it had no knowledge of execution proceedings and objections were filed as soon as Gaon Sabha came to know about the said proceedings.
8. The third ground taken by the learned A.D.J. is that opportunity of producing evidence should have been provided to the decree holder and auction purchasers. In this regard it is important to note that no prayer for adducing evidence was made by the decree holder and auction purchasers.
9. The next ground taken by the revisional court is that as auction purchasers had been delivered possession of the property hence sale could not be set-aside. In this regard, reliance was placed upon an authority of this Court reported in Abdul Ghani v. Mahendra Kumar and Ors. , wherein it was held that if a stranger has purchased the property in auction then after reversal of the decree auction can not be set-aside. The said principle is not at all applicable to the facts of the instant case. In the instant case, no prayer was made for setting aside the decree in execution of which property in dispute was sold. In the instant case, objections against execution were filed under Section 47 C.P.C. which were quite maintainable.
10. I am constrained to observe that judgment and order passed by the Additional District Judge is utterly illegal. Each and every point taken by him is against the settled principles of law. Learned A.D.J. did not say a single word regarding the points on which sale was set-aside by the trial court. Revision was allowed on flimsy and imaginary bars against filing of objections under Section 47 C.P.C. The least, which can be said is that learned A.D.J. was predetermined to allow the revision, dismiss the objections of Gaon Sabha and confirm the auction sale.
11. It is correct that mere inadequacy of consideration is no ground to set-aside the auction sale. However, if the consideration for which property has been sold is shocking to the conscious of the court then it is good ground by itself to set-aside the same. Even in the year 1968 for one rupee even one square yard of land could not be purchased. However through the impugned auction one bigha of land (equivalent to 917 square yard) was sold for only Rs. 1/-.
12. As rightly observed by the trial court the auction sale was also labile to be set-aside for want of compliance of mandatory provisions of Order 21 Rule 22 C.P.C. The sale was also liable to be set-aside for non compliance of provisions of Order 21 Rule 64 C.P.C. which are quoted below:
Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
13. The attachment was in respect of two separate plots hence it was essential to sale only one of the two plots by virtue of Order 21 Rule 64 C.P.C. In fact the amount of Rs. 400/- could be fetched by selling only one bigha of land. In the year 1968 average value of agricultural land in U.P. was about Rs. 5000/- per Kuchcha bigha. The Supreme Court in a recent authority reported in Bala Krishanan v. M. Konar has held that only so much portion of the property must be sold which is sufficient to satisfy the decree and it is not just a discretion but obligation on court. Sale held without examining this aspect is illegal (para 10). In the said case, objections filed after ten years of confirmation of sale were directed by the High Court to be treated objections under Section 47 C.P.C. Supreme Court approved the veiw of the High Court. In the said case also five acres of land had been sold for Rs. 4000/-, which was termed as paltry sum by the Supreme Court. It has been held by the full benches of Rajasthan and Patna High Courts in Phool Chand and Anr. v. Badri Prasad and Baleshwar Chaubey v. R.R.P Singh and Ors. AIR 1947 Patna 461 that objections against sale under Section 47 C.P.C can be filed even after confirmation of sale if applicant shows that owing to fraud or for other reason he was ignorant of the sale proceedings preliminary to sale. Similarly it has been held by this Court in Firm Harvilas Rai, Deokinandan, Ranikhet and Anr. v. Lucknow Resin Factory and Ors. 1981 ALJ 464 that if the sale is void ab initio then objections regarding illegality may be made even after sale is confirmed.
14. Accordingly I am of the view that the order passed by the revisional court is patently erroneous in law and without jurisdiction.
15. Writ petition is therefore allowed. Judgment and order passed by the revisional court dated 25.7.1987 is set-aside. Judgment and order passed by the trial court dated 15.5.1981 setting aside the auction sale is confirmed.