HORAM Vs. ABDUL MAJID

JUDGEMENT

(1.) This a decree holder's second appeal from the decree of the Civil and Sessions Judge, Moradabad confirming that of the Munsif Amroha allowing the judgment debtor's application Under Sec. 47 Code of Civil Procedure and granting him a declaration that the sale of a certain property in the execution proceedings was without jurisdiction and void and ordering the restoration of possession of the property to the judgment debtor. The facts are these. The Appellant Horam who is the decree holder and the Respondent in the application Under Sec. 47 obtained a money decree against Abdul Majid in the Small Cause Court. He put the decree in execution and had the Applicant's immoveable property attached and sold. This property consisted of a half share in a house and a grove. In the auction sale the decree holder purchased the property himself and obtained formal possession of the judgment debtor's half share. It is important to note that at no stage of the execution proceedings did the judgment debtor raise any objection that the execution court had no jurisdiction to execute the decree. Subsequently the decree holder filed a suit against the other joint owner for partition of his half share, which was decreed. He put this decree, in execution and obtained possession. But three days before possession was delivered to him the judgment -debtor in the earlier suit for recovery of money filed a suit for a declaration that the court executing Small Cause Court decree had no jurisdiction to do so and consequently the sale and delivery of possession to the' decree holder was void. The decree holder resisted this suit and raised a number of preliminary objections - -namely that (1) a separate suit was barred Under Sec. 47 Code of Civil Procedure, (2) that the suit was barred by res judicata, (3) that the impugned sale in execution of the Small Cause Court decree was valid. The trial court held that the suit was barred by Sec. 47 Code of Civil Procedure but decided to treat the plaint as an application Under Sec. 47 Code of Civil Procedure following the observations of the Supreme Court - -Merla Ramanna v/s. Nallaparaju : AIR 1956 SC 87. It further held that the sale in execution of the money decree passed by the Small Cause Court was void because the execution court had no jurisdiction to proceed against the immoveable property of the judgment debtor. It followed the principle of law laid down in a case decided by me and confirmed by a Bench of this Court - -Karam Chand v/s. Gurdayal : AIR 1960 All 512: 1960 AWR 186 Bhukhanial v/s. Ishwar Dayal Singh, 1963 ALJ 220. The trial court further held that the Applicant was entitled to recover possession of his property and passed a decree for a declaration of the Applicant's title and recovery of possession. This decision was confirmed by the Civil Judge and the decree -holder has come here in second appeal.

(2.) I have heard learned Counsel for the Appellant and the Respondent and perused the judgments of the courts below as well as the record of the case. In my opinion the decision of the lower court is erroneous. It is necessary to state a few facts. After the Appellant decree -holder had obtained his decree from the Small Cause Court he had it transferred to the Munsif's court for execution. He had the judgment debtor 's half share in the property attached and sold, he purchased the property himself. The sale took place on 15 -1 -1959 and was confirmed on 20 -2 -1959. The sale certificate was issued on 30 -3 -1959. Through out these proceedings the judgment debtor Abdul Majid (the Respondent before me) raised no objection against the jurisdiction of the execution court. On 2 -5 -1959 the decree holder (the Appellant before me) obtained symbolic possession of half share of the judgment debtor in the property. On 18 -1959 he filed a suit for the partition of his half share. The judgment debtor in the money suit was not a party to this partition suit. On 10 -11 -1959 a compromise preliminary decree for partition was passed and on 3 -2 -1960 a final decree for partition was passed. Throughout this period the judgment debtor in the money suit did nothing to assert his alleged right. On 17 -11 -1960, the decree holder in the partition suit who was also the decree holder in the money suit and is the Appellant before me, obtained possession of his half share in the property. But three days before delivery of possession the judgment debtor in the money suit filed the present suit for a declaration that the sale in execution of the money decree passed by the Small Cause Court was null and void and for recovery of possession.

(3.) Both the courts below have held that the present suit - -converted into an application Under Sec. 47 Code of Civil Procedure - -was not barred by res judicata. I am afraid they were in error. In Mohanlal v/s. Binai : AIR 1953 SC 63 it was held that the failure on the part of the judgment debtor to raise an objection against the jurisdiction of the execution court precludes him from raising the plea of jurisdiction on the principle of constructive res judicata after the property had been sold to the auction purchaser who has entered possession. In the case before the Supreme Court the judgment debtor was served with notice of the execution application and he himself made two applications for setting aside the sales in execution, but neither in the execution application nor in his own application did he raise any plea that the execution court had no jurisdiction to execute the decree. The Supreme Court held that his failure to raise such an objection which went to the root of the matter precluded, him from raising it after the property had been sold and possession delivered.