Patna High Court
Jugal Kishore Singh vs Mst. Lakshmi Kumari And Ors. on 2 February, 1980
Equivalent citations: AIR1981PAT121, 1981(29)BLJR281, AIR 1981 PATNA 121, 1981 BLJR 281, (1981) PAT LJR 63, 1980 BBCJ 301
JUDGMENT U.C. Sharma, J.
1. This is the defendant's appeal against the concurrent judgments and decree of the courts below arising out of a suit for declaration of title, confirmation of possession and for permanent injunction restraining defendant No. 1, from interfering with the plaintiff's possession with regard to an area of land measuring 1 Bigha, 16 Kathas 15 dhurs situate in village Jura, P. S, Digha in the suburb of the town of Patna on the adjudication that the sale held on 21-1-1963, was void and inoperative.
2. The undisputed facts are that defendant No. 1, Jugal Kishore Singh had brought a suit being Title Suit No. 69/47 against one Raghunandan Chain, who is defendant No. 2 in this case, in the Court of Munsif, 3rd Court, Patna, for declaration of title and recovery of possession after evicting Raghunandan Chain from the house standing on Plot No. 200 and Khata No. 120 of village Jujra and for recovery of arrears of rent and mesne profit on the allegations that Raghunandan Chain was holding the building as a tenant under him on a monthly rental of Rs. 18/-. In that suit Toni Mahton, who was the original plaintiff in this case, had intervened on the allegation that he being the heir of the recorded tenant with respect to the disputed property of that suit, had title to the same. The suit was dismissed by the trial Court but on appeal by the present defendant No. 1, Jugal Kishore Singh, in Title Appeal No. 237 of 1959. the suit was decreed on 22-3-1961. In that appeal Toni Mahton had filed a cross objection which was dismissed.
3. The decree holder Jugal Kishore Singh levied execution in Execution Case No. 177 of 1961 and got the property of Toni Mahton, the present plaintiff sold on 21-1-1963.
4. The case of the plaintiff Toni Mahton is that the appellate Court passed a decree for eviction of Raghunandan Chain from the house and for arrears of rent and costs and not against him and hence there was no liability on him to pay the rent and cost and, therefore, he was not liable under the decree to pay the decretal dues. Execution should have been levied against Raghunandan Chain alone for realising the decretal dues and the property of Toni Mahton was not liable to sale. It was alleged that no notice under Order 21, Rule 22 of the Code of Civil Procedure was served on him nor any notice of attachment, sale proclamation or writ of delivery of possession were ever served on the plaintiff or effected on the spot and the plaintiff had no knowledge of the execution.
It was also alleged that defendant No. 1 (decree holder) knowingly and with ulterior motive got the land and the house of the present plaintiff fraudulently sold, It was stated that the property worth Rs. 75,000/- and his house worth not less than Rs. 15,000/- were fraudulently got sold for Rs. 1100/- and odd only. The case of the plaintiff further is that he came to know of the fraud for the first time on 7-9-1963. He asserted that he is continuing in possession of his properties in spite of the so-called delivery of possession but since a cloud has been cast upon his title, he has filed the present suit for the relief mentioned above.
5. The plaintiff Toni Mahton and defendant No. 2, Raghunandan Chain died during the pendency of the suit and their heirs have been substituted. Ram Jiwan Prasad, who was substituted in place of Toni Mahton also appears to have died leaving behind heirs who are all respondents in the appeal.
6. The suit was contested by Jugal Kishore Singh who pleaded, inter alia, that the suit was not maintainable and was barred by limitation as well as by the provisions of Section 47 and Order 21, Rule 92 of the Code of Civil Procedure. His case is that Title Appeal No. 237 of 1959 was allowed in his favour and as Raghunandan Chain and the cross objector Toni Mahton had jointly denied his title, they were jointly liable under the decree and the decretal dues could be realised from any of them and the executing Court had every right to get the property of Toni Mahton sold. The plaintiff's case about non-service of various notices in the execution was denied and it was asserted that Toni Mahton had full knowledge of the execution and he having not raised objection in the execution, was not entitled to agitate the matter by a separate suit. It was also stated that there was no question of under valuation of the property and all steps in the execution were taken in the proper and legal manner.
7. Both the parties adduced evidence in support of their respective cases and on consideration of the same, the learned execution Munsif, who tried the suit, held by his judgment and decree dated 30-3-1968. That the suit was maintainable and was not barred under any of the provision of law and that the plaintiff was continuing in possession of the disputed property as a rightful owner. It was held that the sale held in the execution was illegal and invalid and was not binding on the plaintiff. The defendant, Jugal Kishore Singh preferred appeal which was heard by the learned Subordinate Judge, Patna, who by his judgment and decree dated 25-9-1972 affirmed the findings of the trial Court and dismissed the appeal. It was held that the plaintiff was not liable under the decree of the previous suit and there was no question of joint liability. The defendant being aggrieved by the said judgment and decree preferred this Second Appeal. It was placed for hearing before Hon'ble Single Judge, who, after hearing the parties, ordered this appeal to be placed for hearing before a Division Bench. Accordingly, this appeal has come before us for hearing.
8. Mr. Krishna Prakash Sinha, learned counsel appearing for the appellant, contended that the plaintiff's suit was barred by Section 47 and Order 21, Rule 92 of the Code of Civil Procedure and the sale being voidable and not void, this suit was barred by limitation under Article 166 of the Limitation Act. It was next contended that though the plaintiff alleged fraud, he did not allege, in the pleading or in the evidence, the date of knowledge which was essential. He filed an application for adducing additional evidence which shall be considered later. On these grounds it was urged that the plaintiff's suit was fit to be dismissed.
9. The learned counsel appearing for the respondents, on the other hand, contended that the plaintiff Toni Mahton was not liable under the terms of the decree in the previous suit to pay the decretal dues and, therefore, the sale of his property in execution of such decree was void. It was pointed out that the previous suit was against Raghunandan Chain for his eviction from the house and for arrears of rent and Toni Mahton being not a tenant, there was no question of joint decree being passed against him. It was urged that all the processes in the execution having been fraudulently suppressed, Toni Mahton had no knowledge of the execution and, therefore, he could not approach the Executing Court and now that the execution is over he has no alternative but to file the present suit, for declaration and consequential reliefs.
10. The concurrent findings of the Courts below are that notice under Order 21, Rule 22. C. P. C. was not served on Toni Mahton in the execution of the previous decree nor was attachment or sale proclamation or delivery of possession duly effected. It was also found that Toni Mahton was still continuing in possession of the disputed land and house situate over it. The suit property was so grossly under valued that it was shocking to the conscience and that the defendant appellant practised fraud upon the Court; These findings have been arrived at by the Court below after proper consideration of the evidence on the record. No legal infirmities could be pointed out in those findings. Since those are findings of facts, this Court in Second Appeal was not entitled to interfere with them. The learned counsel for the appellant, however, contended that the effect of the above findings is that sale held in execution was voidable and not void.
11. It is well established that the irregularity or illegality in effecting attachment or sale proclamation is merely a material irregularity in publishing and conducting the sale and renders the sale voidable and not void. Similar is the position so far as fraud in publishing and conducting the sale is concerned. As regards non-service of notice under Order 21, Rule 22, C. P. C. the position before 1947 was that in absence of such notice sale was void but after amendment Order 21, Rule 22, C. P. C. by the Patna High Court, the non-service of notice under O, 21, Rule 22. C. P. C. is also considered to be a mere irregularity. That being the position I am inclined to agree with the contention of the learned counsel for the appellant that non-service of notice under Order 21, Rule 22, attachment and sale proclamation or fraud in publishing and conducting the sale would make it voidable and not void.
12. The learned counsel for the appellant contended that the irregularities as above pointed out may be a good ground for setting aside the sale under Order 21, Rule 90, C. P. C. and the plaintiff who was judgment debtor in the execution case having not resorted to that provision no separate suit for that purpose would lie and this suit would be barred under Order 21, Rule 92, C. P. C. The learned counsel for the respondents in reply to the said argument, contended that the suit is not for setting aside the sale or the order confirming the sale and his client having never applied under Order 21, Rule 90, C. P. C. this suit cannot be held to be barred under the provision of Rule 92 of Order 21. The plain reading of Rule 92 makes it clear that where no application under Rule 89, 90 or 91 is made, or where such application is made and disallowed, the court shall make an order confirming the sale and where such application is made and allowed, the court shall set aside the sale and no suit to set aside such orders shall be brought by any person against whom such an order is made.
Thus, what is barred under Order 21, Rule 92 is suit for setting aside the orders passed under that provision and not all suits. Rule 92 contemplates a sale which is in law required to be set aside, in other words, where a sale is voidable. If the sale in this case is voidable, the contention of the learned counsel for the appellant is correct. But the argument of the learned counsel for the respondents is, that his client has not brought the suit for setting aside the sale nor for setting aside the order confirming the sale. Therefore, Order 92 has no application. His argument is that the sale in this case is absolutely void and, therefore, the question of its setting aside does not arise.
13. He submits that the plaintiff, Toni Mahton, was not liable under the terms of the decree, and, therefore, the executing Court had no jurisdiction to sell his property in execution of such decree. This argument is vehemently opposed by the learned counsel for the appellant. According to him the decree was joint de-free and, therefore, Toni Mahton was equally liable and the Executing Court was perfectly within its right to put his property to sale. The argument thus relates to the interpretation of the decree. The operative portion of the judgment of the appellate Court in Title Appeal No. 237/59 (Ext. V (1)) is as follows:--
"In view of my above findings the appeal is allowed on contest with costs and pleader fee Rs. 32/- only. The judgment and decree of the Court below is set aside. The cross objection filed by defendant respondent No. 4 is dismissed."
It appears that after this judgment and decree, the present appellant filed a petition for amendment of the decree. On that petition, the appellate Court recorded the following order:--
"It appears that due to accidental omission it has not been mentioned hi the judgment or decree that the appeal has been allowed, the suit is decreed and the plaintiff is entitled to get the defendants evicted from the house in dispute. As this is purely an accidental omission, I allow the prayer for amendment under Section 152, C. P. C. and the necessary amendment as observed above may be made in judgment and decree accordingly."
After this amendment it was added to the operative part of the Judgment after what has already been quoted above, "The suit is decreed and the plaintiff is entitled to get the defendants evicted from the house in dispute". Accordingly, the decree was prepared (Ext. T). The relevant portion of the decree is in these terms:--
"......It is ordered that the appeal is allowed on contest with costs and pleader's fee Rs. 32/- only. The Judgment and decree of the court below be set aside. The cross objection filed by defendant-respondent No. 4 is dismissed. The suit is decreed and the plaintiff is entitled to get the defendants evicted from the house in dispute...."
The court below construed the decree and held that the plaintiff, who was inter-venor defendant respondent in that suit, could not have been called upon to pay the decretal dues passed in favour of the appellant. Since different interpretations have been put on the decree by the learned counsels it has to be construed in the light of the facts and circumstances of that suit and the findings arrived at therein. The facts are that the present appellant Jugal Kishore Singh, filed a suit for declaration of title in respect of a decree on plot No. 200, Khata No. 120 situate in village Jujra and for recovery of possession with arrears of rent and mesne profit. In that suit he impleaded one Raghunandan Chain as defendant No. 1 on the allegation that Raghunandan Chain was his tenant on a monthly rental of Rs. 18/-.
Thus the entire relief was claimed by Jugal Kishore Singh against Raghunandan Chain. Toni Mahton, the plaintiff of this suit, intervened on the allegation that he was the heir of the recorded tenant with respect to the plot in question and, as such, he was entitled to the property and was in possession. Even after his intervention the plaint was not amended and no relief was claimed against Toni Mahton. The suit was dismissed by the Trial Court. On appeal it was held that the plaintiff had title to the disputed house and, as such, he was entitled to get Raghunandan Chain ejected from the house and he was also entitled to get arrears of rent as claimed by him. In that appeal Toni Mahton preferred a cross objection claiming to be heir of the recorded tenant. The trial Court as well as the appellate Court held that there was no satisfactory evidence either oral or documentary to prove that he was the heir of recorded tenant and his claim was rejected.
In that background the plaintiff's suit was decreed and cross objection of Toni was dismissed and the decree was passed as already stated above. It would appear from the facts and the findings as stated above that the entire claim of Jugal Kishore Singh was against Rrfghunandan and the same was decreed by the Appellate Court. It was never the case of Jugal Kishore Singh that Toni Mahton was his tenant and was liable for the arrears of rent and therefore, the Court could not have nor could be taken to have passed a decree for eviction and for arrears of rent against Toni. The plain reading of the judgment and decree would show that Toni Mahton was not made liable for the arrears of rent. Then remains the question of costs.
It appears from the Judgment and decree that the appeal of Jugal Kishore Singh was allowed with costs on contest. Thereafter, it has been said that the cross objection filed by defendant-respondent No. 4. i. e. Toni Mahton be dismissed. It has not been said that cross objection is dismissed with costs. Even after the amendment it has not been stated that Toni Mahton would be liable for the costs. What has been stated after the amendment is that "the suit is decreed and the plaintiff is entitled to get the 'defendants' evicted from the house in dispute." The learned counsel for the appellant contended that since the "defendants" were ordered to be evicted from the house, it has to be taken that Toni was made liable for the arrears of rent and costs. If I may say so with respect, this argument has no substance. The decree, on the face of it, does not bear him out. Under the decree the defendants were ordered to be evicted from the house and as it appears to me, it was only to allay the apprehension of the decree holder Jugal Kishore Singh that Toni Mahton, having claimed to be in possession of the property in dispute, might put obstruction in his getting delivered of possession. From that it does not follow that Toni Mahton was also made liable for the arrears of rent and costs which was not specifically claimed nor awarded against him but was awarded against Raghunandan Chain, who was, on the case of Jugal Kishore himself, his tenant on a monthly rental of Rs. 18/-. That being so Toni was not liable under the decree and the Executing Court had no jurisdiction to sell his properties under the terms thereof. The sale was thus in excess of what the decree directed and was, therefore, void -- See Merla Ramanna v. Nallaparaju, (AIR 1956 SC 87). Since no decree was passed against Toni, the question of joint decree being passed against him does not arise.
14. The learned counsel for the appellant also raised the question of res judicata on the ground that the question which is now being raised could have been raised in the execution and the same having not been raised would be deemed to have been raised and decided against the plaintiff. The short answer to this point is that the question of executability of the decree against the plaintiff could have been taken in the execution of the decree which in this case could not be taken because the sale was held by the executing court without notice to the plaintiff. The argument of the learned counsel, therefore, must be rejected.
15. The learned Counsel for the appellant then contended that in any case the question raised in this suit relates to execution of the decree and would fall within the purview of Section 47 of the Code of Civil Procedure and, as such, the present suit is barred under that provision. The present suit raises the question with regard to liability under the decree and thus relates to the execution, discharge and satisfaction of the decree. When the sale in the execution of a decree is impugned on the ground that it was not warranted by the terms of the decree, that question could be agitated when it arises between the parties to the decree only in an application under Section 47 and not in a separate suit (Merla Ramanna v. Nallaparaju, AIR 1956 SC 87). In this view of the matter, the argument of the learned Counsel for the appellant has to be accepted.
16. The learned counsel for the respondent contended that the sale having taken place and the execution struck off, there was no execution pending and the question of applicability of Section 47 would not arise. It, however, appears, that Toni Mahton was a party to the suit and the question relating to execution discharge and satisfaction of the decree arises between the decree-holder on the one hand and the party to the decree on the other. Thus, the conditions required to attract the application of Section 47 are present in this case. As to the argument that the execution came to an end and Section 47 was inapplicable suffice it to say that the question whether the decree was completely satisfied and therefore the Court became functus officio is by itself a matter relating to execution, discharge and satisfaction of the decree (B. V. Patankar v. C. G. Sastry, AIR 1961 SC 272). The argument has no substance.
17. If that had been all, the suit could well have been held to be barred under Section 47 and dismissed on that ground alone. But then Section 47 itself provides that the Court may in proper cases treat a suit as an application under Section 47 subject to objection, if any, as to limitation or jurisdiction. Thus the plaint filed in this suit may be treated as an application under Section 47 of the Code of Civil Procedure provided that on the date on which the plaint in this case was filed an application for the relief claimed was 'not barred by limitation and that the Court in which it was filed was competent to execute the decree.
The plaint in this case was filed on 5-10-1963. The sale of the plaintiff's property had taken place on 21-1-1963. The question is what article of the Limitation Act would apply if the plaint of this suit is treated as an application for execution. There are two relevant articles of the old Limitation Act, namely, Article 166 and Article 181. Article 166 provides 30 days limitation from the date of sale whereas Article 181 provides for 3 years' limitation. If Article 166 applies there can be no doubt that the present proceeding shall be barred. Article 166, however, is confined to cases where the sale is void-able and is required to be set aside. In the present case it has been held that the sale in question was void and not voidable. That being so, Article 166 is inapplicable. In a void sale the date of the sale vanishes as the starting point of limitation inasmuch as a void sale has no existence in the eye of law and does not require to be set aside, mere declaration of the sale being void is enough. Therefore, if a party files an application under Section 47 to have the sale declared void and for other appropriate reliefs the proper article to be applicable would be Article 181 of the limitation Act. In that view of the matter, ho question of limitation arises in this case.
18. The next question for consideration is whether the Court in which the present suit was filed had jurisdiction to execute the previous decree. The Court in which the previous decree was executed and the impugned sale held was the Court of the Munsif, Patna. The present suit was filed in the Court of Munsif, Patna, and disposed of by the Execution Munsif. It would thus appear that in both the proceedings the courts were of coordinate jurisdiction. The question of jurisdiction, therefore, does not arise.
19. As for the conversion of the suit into an application under Section 47, all the relevant facts have been alleged in the plaint. In the written statement also an objection was taken in clear terms that the suit was barred by the provisions of Section 47 of the Code of Civil Procedure. It has been alleged in the plaint that the sale was absolutely unauthorised and the plaintiff's property was not liable to be sold and that the sale was void, without jurisdiction and not binding on him. The question in controversy between the parties are fully covered by Section 47. It is true that no prayer has been made for conversion of the suit into a proceeding under Section 47, but the Court has power under the said section to convert a suit into a proceeding in appropriate cases. It has been found that valuable properties of the plaintiff have been sold, in execution of a decree under the terms whereof he was not at all liable to pay the decretal dues, without any notice having been served on him at any stage.
I think, this is pre-eminently a proper case in which this Court should exercise its power converting the suit into a proceeding under the provisions of Section 47 C. P. C. From the judgment of the lower appellate court it appears that it was conceded on behalf of the appellant that the delivery of possession over the sold properties was only symbolical. This lends support to the case of the plaintiff, Toni Mahton, that he is still continuing in possession of those properties. On declaration that the sale is void, the plaintiff is entitled to continue in possession of the properties and the defendant. Jugal Kishore Singh is not entitled to interfere with the possession on the basis of his purchase at auction sale. Having converted the suit into a proceeding in execution I am of the view that the plaintiff is entitled to the reliefs claimed.
20. On behalf of the appellant an application for admitting additional evidence has been filed. The additional evidence is the inspection slip and Vakalatnama. The plaintiff's case was that he did not know about the execution and the sale and he came to know about it for the first time on 7-9-1963 and then filed a slip for inspection of the record with Vakalatnama. The defendant appellant challenged the date of knowledge by the plaintiff by filing inspection slip and Vakalatnama as additional evidence to show that the date of knowledge alleged by him was not correct. It has, however, been found in this case that none of the processes in the execution was served on the plaintiff and that the sale was void. In that view of the matter, I do not consider the additional evidence proposed to be admitted in the appeal to be relevant or necessary for the decision of this appeal. However the plaintiff had alleged that date of knowledge in the plaint. If that was wrong then the defendant could have shown that to be wrong with reference to the evidence which he is now pressing for admission. From the two Judgments it does not appear that this point was raised in the Court below at the time of hearing. No petition for additional evidence was filed in the court of appeal below. It is not possible to say that the defendant had no knowledge of these documents during the pendency of the suit or appeal. The prayer appears to be a belated one. After the hearing of the parties and considering the matter I am not satisfied that the additional evidence as proposed to be filed in the Second Appeal should be admitted in evidence. The application has no merit and must be rejected.
21. For the reasons given above, the present suit is converted into a proceeding in execution, the sale held on 21-1-1963 is declared void and inoperative and the conclusions of the Courts below are held to be substantially correct.
22. In the result, the appeal fails and is dismissed with costs.
Uday Sinha, J.
23. I agree.