MEHTAB Vs. VIIITH A.D.J.

JUDGEMENT

(1.) HEARD learned counsel for both the parties. The writ petition was dismissed for want of prosecution on 4.9.2008, thereafter restoration application was filed which was allowed on 17.5.2013 and thereafter arguments of learned counsel for both the parties on the merit of the writ petition were heard and judgment was reserved.

(2.) ATAR Singh father of respondent no.3 since deceased and survived by respondent no.3 obtained a decree against Nepal Singh father of the petitioners 1,2, and 3 and husband of petitioner no.4, since deceased and survived by the petitioners. Thereafter, the decree was put in execution in the form of Execution case no.16 of 1979. Immovable property belonging to Nepal Singh was sold in Execution of the decree and purchased by respondent no.4, Baleshwar on 6.9.1980 for Rs.2000/- Nepal Singh filed objections under Section 47 C.P.C. claiming that the property sold was gher used for agricultural purposes and for tethering the cattle and his main source of income was agricultural hence gher was exempted from attachment and sale by virtue of Section 60(1)(c) C.P.C. The objections were rejected on 7.12.1983 by Munsif Hawali, Meerut (objection had been registered as Misc. case no.132 of 1980 Nepal Singh Vs. Atar Singh). Against the said order petitioners filed Civil Revision no.9 of 1984. 8th A.D.J. Meerut, dismissed the revision on 12.1.1990, hence, this writ petition. One of the arguments raised by the decree holder and auction purchaser respondent before the executing court was that earlier also objections filed by the judgment debtor had been rejected hence second objections were barred by res judicata. Earlier objections were filed in the form of misc. case no.123 of 1980. Executing court held that the earlier objections were not under Order 21 Rule 90 C.P.C., hence, subsequent objections under Section 47 C.P.C. were not barred as the scope of both was different. The second point decided by the executing court was that judgment debtor could not file objections against auction purchaser.

(3.) THE revisional court held that objections could earlier be filed under order 21 Rule 58 C.P.C. and against attachment of the property in dispute on the ground that it was exempted from attachment under Section 60 C.P.C. and that having not been done, subsequent objections under Section 47 C.P.C. were not maintainable. The revisional court held that there was no need to go into the details as to whether the judgment debtor was an agriculturalist or not and whether objections under Section 47 C.P.C. against auction purchaser are maintainable or not. Lower revisional court did not state that judgment debtor had filed any objection regarding immunity from attachment under Section 60(1)(c) C.P.C. earlier. In such a situation objection under Section 47 C.P.C. were quite maintainable even after confirmation of sale.