MALINGA NAIK Vs. IBRAHIM

JUDGEMENT

(1.) The appellants in these two appeals are members belonging to Scheduled Tribe in Kerala. Admittedly by them, the property in their possession and enjoyment had been sold in execution by a civil court. In the court sale, the property has been purchased by the first respondent. The sale has been confirmed in his favour. Later, the appellants filed an application under R.3(a) of the Kerala Scheduled Tribes (Restriction on Transfer of Land and Restoration of Alienated Lands) Rules, 1986 before the third respondent for restoration of the land purchased by the first respondent under court auction to the appellants. The third respondent allowed that application for restoration of the lands and directed the first respondent to hand over possession of the land purchased by him in court auction to the appellants within 30 days. The first respondent filed an appeal as provided in S.6(5) of the Kerala Scheduled Tribes (Restriction on Transfer of Land and Restoration of Alienated Lands) Act, 1975 before the second respondent. The second respondent, after hearing the parties dismissed the appeal. Ext. P4 is the order passed by the original authority and Ext. P6 is the order passed by the appellate authority.

(2.) Exts. P4 and P6 were challenged by the first respondent before this court in the respective Writ Petitions. The learned Single Judge allowed the Writ Petitions quashing Exts.P4 and P6 orders taking the view that the court sale will not come under transfer as defined in S.2(g) of the Act and therefore, there was no restriction as imposed by S.4. The learned Single Judge also found that the contention of the appellants that there was prohibition of attachment and sale of immovable properties possessed by the members of Scheduled Tribe, as per R.5 of the rules was also not available to the appellants, as they did not agitate that contention before the Execution Court and therefore, they were barred in pursuing that contention in terms of the principles contained in Explanation.4 to S.11 of the Code of Civil Procedure, 1908. The learned Single Judge also relied on the decision in Velayudhan Krishnan v. Bhagavathy Padmakshy, 1992 (2) KLT 440 , to hold that court sale will not come under transfer as defined in the Act. It is in the above circumstances, the appellants, the contesting respondents in the Original Petition have come up with those appeals.

(3.) The appellants reiterated their contentions. According to them, the execution court had attached their properties in execution of a money decree. Such attachment is prohibited as per R.5 of the Rules which reads as follows: