KRISHNAJI PANDURANG NAIK Vs. GOVIND NARASIMHA UMARJI

JUDGEMENT

(1.) Krishnaji Pandurang Naik the petitioner was the owner of lands bearing Survey Nos.9 and 11 of Nandgad village. In 1946, he sold the lands to Govind Narasimha Umarji Respondent 1 before .me. After the sale, he instituted proceedings under the Bombay Agricultural Debtors Relief Act claiming that the alienation made by him was not an out and out sale, but only a mortgage and he should be permitted to redeem the same. G. N.Umarji resisted the action. The Joint Civil Judge, Junior Division, Belgaum before whom the proceedings were initiated, held that the transaction complained of was not a mortgage. Against that decision, the petitioner preferred an appeal to the BADR. Court. In the said appeal, the petitioner and respondent 1 entered into a compromise. They agreed that the alienation regarding Sy No.9 should be treated as mortgage and the one in respect of Sy No.11 should be treated as sale. On 14-10-1960, the BADR. Court made an award accordingly. G.N.Umarji was a local Talati. He had taken Takkavi loan from the Govt on the security of Sy No.9. He became a defaulter in payment of the loan. He had also misappropriated certain Govt funds. To recover the said sum, the Govt brought land Sy No.9 to public auction. On 6-11-1957, in the absence of bidders, the Govt purchased the land for a nominal price of Re.1. On 10-3-1961, the said land was again auctioned in which Somanna Gangaram Gunjikar-Respondent 3 before me purchased it for Rs.4,000. On 30-5-1961, the sale was confirmed in his favour.

(2.) The petitioner wanted to execute the award decree. So, he filed an execution petition in the Court of the Second Addl Munsiff, Belgaum to which he had impleaded the State Govt and also the auction purchaser Respondent 3. The petitioner contended that they are the representatives of the judgment-debtor G.N.Umarji and they should be directed to deliver possession of the property to him. But the Govt and the auction purchaser contended that the decree was obtained by collusion and practising fraud, and was not binding on them. The learned Munsiff rejected the execution petition observing that the decree-holder, if he is so advised, might file a regular suit and such a suit was not barred under Sec.47 of the CPC. Aggrieved by that order, the petitioner preferred an appeal to the Second Addl Dist Judge, Belgaum. The learned Judge, among other findings, held that the State Govt and the auction purchaser were not representatives of the judgment-debtor and the petitioner, therefore, could have his remedy by way of suit. Hence this revision petition.

(3.) From the above facts, it is seen that the State Govt and S.G.Gunjikar were not parties to the award proceedings. There was also no adjudication by a Court that Survey No.9 was mortgaged to G. N. Umarji and not sold to him. The petitioner claimes possession only on the basis of the consent award. On these facts, can we say that the view taken by the appellate Judge was incorrect? Can we say that the State Govt and S. G. Gunjikar were representatives of the judgment-debtor ? Should they be regarded as parties to the award proceedings? S.47 of the CPC provides an effective answer to these questions. It 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, and that where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. The Explanation thereunder provides that for the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit. On the strength of this Explanation, it was urged for the petitioner that S.G.Gunjikar who was an auction purchaser should be held to be a party to the proceedings. It was also urged that the first sale made in favour of the State Govt was void in view of the decision of the Supreme Court in Ramrao Janikram Kadam v. State of Bombay, AIR. 1963 SC. 227. Counsel for the respondents, however, submitted that the ratio of that decision is not applicable to the facts of the present case since the Supreme Court was concerned in that case with a sale without any statutory rules regulating the auction, whereas the position in the present case was quite different. It is said that erstwhile State of Bombay had framed Land Revenue Rules for regulating such auction in which the State Govt validly purchased the land for a nominal price of Re. 1 for want of bidders and that sale was not invalid.