Patna High Court
Bhondu Sao Ramdas vs Doma Sao And Ors. on 25 January, 1960
Equivalent citations: AIR1960PAT294, AIR 1960 PATNA 294
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, J.
1. The decree-holder has filed this miscellaneous second appeal against the order of the Additional Subordinate Judge, VIth Court, at Patna, dated 21-8-1958 passed in Miscellaneous Appeal No. 16/12 of 1958. I must observe at the outset that this is a very peculiar order I have come across passed by an appellate Court in this fashion. The decree-holder-appellant had a money decree against the respondents, including respondent No. 1 who was judgment-debtor No. 1 and they had objected to the execution of the decree on several stages. Ultimately all their objections failed. The property was sold in execution of the decree on 17-9-1955 and the sale was confirmed on 17-11-1955. When the decree-holder proceeded to have delivery of possession over the properties sold, an application was filed by respondent No. 1 labelling it under Sections 47 and 151 of the Code of Civil Procedure.
This application was filed on 13-6-1957. The only ground taken in this application is that holding Nos. 8 and 50 are amalgamated together and the only holding which has been sold to the decree-holder is holding No. 8, but he wants to take delivery of possession over holding No. 50 because of the wrong and incorrect description of the boundaries. It was stated in the fourth paragraph that in view of this wrong description of the boundaries holding No. 8 ought not to have been sold at all and further that no order for delivery of possession can at all be passed in respect of any property. Curiously enough, a threat was also given in this petition in the fifth paragraph :
"That in case the order for delivery of posses-sion is passed in favour of opposite party decree-holder and the writ of delivery of possession goes to the spot for execution it will simply create chaos and confusion and may cause even bloodshed as the holding in question has not a separate identity and that the description of the same is' absolutely incorrect and wrong".
Ultimately, the prayer was made that the delivery of possession of the house in question be stayed, and the matter enquired into and decided according to law. The executing Court, on hearing the arguments only of the parties, decided that such an application under Section 47 of the Code of Civil Procedure was not maintainable and that the decree-holder was entitled to get delivery of possession over the property sold according to the boundaries in the sale certificate irrespective of the question whether the property sold within those boundaries comprised of one holding or two holdings. Respondent No. 1 filed Miscellaneous Appeal No. 16/12 of 1958 which came to be disposed of by the learned Additional Subordinate Judge.
2. The learned Subordinate Judge in the beginning of his judgment, after stating the objection taken by the first respondent in the executing Court, started by saying :
"Over and above this, it has further been urged that the auction sale should be treated as null and void because the fresh sale proclamation which was ordered to be issued on 6-6-1955 was not served at the spot at all".
I could not follow under what provision of law or rule or procedure, the learned Additional Subordinate Judge thought it fit to entertain for the first time in appeal an alleged illegality in the, service of the sale proclamation while hearing an appeal on an objection of respondent No. 1 in regard to the delivery of possession over the property sold. After having observed so, the Additional Subordinate, Judge unnecessarily took pains to ransack the entire records and to find out some alleged illegalities in the service of sale proclamation and to hold that because of the illegalities the sale was without jurisdiction. I am again constrained to observe that the learned Additional Subordinate Judge has betrayed complete ignorance of law in this regard also.
It is well settled that if a property is sold by committing an irregularity or illegality in publication of sale or in conducting the sale, the remedy by the aggrieved party is to apply under Order 21, Rule 90 for setting aside the sale and that should have been done within the statutory period of limitation, and then the matter could have been enquired into as to whether there was any alleged illegality or not. This remedy of the first respondent was barred long ago. He had appeared, as I have said, in answer to a notice under Order 21. Rule 22 of the Code of Civil Procedure. It was, therefore, not open to him to say that he had absolutely no knowledge of the execution proceeding and the processes had suppressed by the decree-holder by committing any fraud. He had, therefore, absolutely no justification to save the bar of limitation for an application under Order 21, Rule 90 of the Code of Civil Procedure, and furthermore there was no such application before the Court at all. That how, in that event, the lower appellate Court could discuss this matter in pages after pages and come to the decision is beyond my comprehension ?
3. When the point was taken before the learned Subordinate Judge that such an application giving rise to this appeal was not maintainable under Section 47 of the Code of Civil Procedure, he has curiously met this argument by observing that if an illegality has been committed in conducting the sale, then the sale becomes without jurisdiction and the court has inherent powers to set aside a sale which was got held by committing fraud. I could not follow this reasoning of the learned Additional Subordinate Judge. There was no application in the executing court asking it to recall any of its previous orders on the ground of any illegality or fraud. This I am saying apart from the question that no appeal would lie even against such an order of the first court refusing to recall its previous order.
Be that as it may, after making all these Irrelevant observations and giving his findings on the points which did not arise at all, the learned Additional Subordinate Judge ultimately has simply set aside the order of the executing court refusing the application of the first respondent for not issuing the delivery of possession. In my opinion, in view of the Full Bench decision of this court in Tribeni Prasad Singh v. Ramasray Prasad, AIR 1931 Pat 241, no appeal lay to the court below and his order setting aside the order of the executing court-is absolutely without jurisdiction. It is well settled that if an appeal has been entertained by the court below wrongly, a second appeal to this Court is competent, and I can set aside the order of the lower appellate court in this second appeal.
4. On the question of merits also, I find that the order of the executing court is correct. The description of the property sold has got to be gathered from the boundaries, and it is well settled that any mistake in regard to holding numbers or plot numbers is of no consequence. The delivery of possession, therefore, has got to issue in this case and, if there is any resistance, the executing court may proceed under the provisions of Order 21, Rule 97 of the Code of Civil Procedure or may enforce delivery of possession with the help of the police force, if necessary, but the judgment-debtors or any of them should not be allowed to flout the order of the Court directing delivery of possession by giving out threats of breach of peace or bloodshed, as has been done in this case by judgment-debtor No. 1.
5. In the result, this miscellaneous second appeal is allowed with costs, the order of the appellate court is set aside and that of the executing court is restored.