SHEKH ROZAN Vs. JAG BAHAL SINGH

JUDGEMENT

(1.) THIS is an appeal by the judgment-debtor defendant. It arises in the following circumstances. Jag Bahal Singh filed a suit against Sheikh Rozan in the Court of Judge Small Causes, Jaunpur. It was decreed for Rs. 370 against the defen dant on 27th July, 1956. The respondent got the decree transferred to the Court of Mun-sif, Shahganj, Jaunpur. On 27th January 1959 he filed an application for execution of the said decree in the court of the Munsif, Shahganj, by attachment and sale of one half share of the judgment- debtor in a house and a piece of land. Consequently the said properties were attached and ultimately sold by public auction in the execution of that decree on 21st July, 1959. The decree-holder himself purchased the share of the judgment debtor in that auction. The sale was confirmed on 26th September, 1959 and a sale certificate dated 9th April, 1964 was issued to the decree-holder auction- purchaser who thereafter obtained posses sion of the said properties on 27th may, 1964. On 3rd August 1964 the judgment-debtor filed an application under Section 47 read with Section 151, C. P. C. alleging, inter alia, that as the decree was passed by the court of Judge, Small Causes the execution thereof by attachment and sale of immov able property was not permissible and the proceeding for auction and delivery of possession were, therefore, illegal and that the entire proceedings of execution were taken surreptitiously without his knowledge.

(2.) THE Trial Court accepted the con tention of the judgment-debtor, set aside its order dated 7th May, 1964 whereby it had ordered for issuing warrant for delivery of possession to Amin and rejected the execu tion application. It further ordered that the judgment-debtor would be entitled to get back the possession of the properties in ques tion. Against that decision the decree-holder preferred an appeal. The Appellate Court below having held that the objection filed under Section 47, Civil Procedure Code was barred by time, allowed the appeal, set aside the order of the Trial Court and dismissed the objections filed by the judgment-debtor. Aggrieved, the judgment-debtor has come to this Court in second appeal.

(3.) THE learned counsel for the res pondent, however, urged that the judgment-debtor having failed to challenge the juris diction of the transferee court at any stage during the execution proceedings was not en titled to raise the plea of jurisdiction at the stage when the sale had already been effected and confirmed and the possession of the pro perty was delivered to the decree-holder auc tion-purchaser on the principle of construc tive res judicata. This contention, however, lias no force. On the date when the decree under execution was passed and when the said decree was put into execution the U. P. Civil Laws (Reforms and Amendment) Act, 1954 had already come into force and the power of the Transferee Court had been conterminous with the power of the transfe ror Court. As the decree in question was passed by the Court of Judge Small Causes the Munsif, to whom the decree had been transferred for execution, was, therefore, im pressed with the power of Small Causes Court. Order 21, Rule 82, Civil Procedure Code prohibited the sale of immovable pro perty in execution of a decree by the Court of Small Causes. Consequently, the Munsif, to whom the decree had been transferred for execution having the same power as that of the Court of Small Causes, could not order sale of immovable property. The sale of the immovable property by the Executing Court in the instant case was, therefore, completely without jurisdiction and the entire execution proceedings were null and void. (See Ram Lochan v. Mahadeo Prasad, AIR 1970 All 544 (FB)). As the entire execution proceed ings were without jurisdiction, hence null and void, the judgment-debtor could ignore the execution including the attachment and sale of the property and could object to his dispossession from the property in pursu ance of those proceedings after he was dis possessed. He could file an objection under Section 47, Civil Procedure Code within three years of the date of his dispossession as was held in the case of Ramanna (Supra). The judgment-debtor could, therefore, come to the court even after an order had been passed declaring the decree satisfied. The learned counsel for the respondent relied on Mohanlal v. Benoy Kishna, AIR 1953 SC 65 in support of his contention that even if the judgment-debtor had to raise an objection that the Execution Court had no jurisdiction to execute the decree, the failure to raise such an objection which goes to the root of the matter, precludes him from raising the plea of jurisdiction on the principle of cons tructive res judicata after the property had been sold to the auction-purchaser who had entered into possession. The facts of Mohan Lai's case AIR 1953 SC 65 (supra) are, how ever, distinguishable from the facts of the present case. In the case of Ram Lochan AIR 1970 All 544 (supra) Mohan Lai's case was also referred to and distinguished on the ground that in Mohan Lai's case AIR 1953 SC 65 there was no lack of inherent juris diction. In the present case the Munsif lack ed in inherent jurisdiction to execute the decree by attachment and sale of the immovable property.