SUNIL KUMAR Vs. RAM DITTA MAL

JUDGEMENT

(1.) This is plaintiff's appeal.

(2.) Dispute is with respect to a house. The house belonged to one Shiv Lal. The actual occupation was of the tenants-defendants 1 and 2. Municipal Board Muzaffarnagar, within the territorial jurisdiction of which the house is situated instituted original suit 185 of 1965 in the Court of the Munsif, Muzaffarnagar against Shiv Lal the owner for the recovery of Rs. 276-25 as appears of house tax for the period 1962-63 to 1964-65 at the rate of Rs. 90/- per annum plus notice expenses contending also that the tax is a first charge on the house and praying that in case the amount is not paid within the period specified the recovery be made by sale of the property. The suit was decreed ex parte on July 30, 1965 The decree-holder Municipal Board put the decree to execution on April 27, 1968 which was registered as Execution Case No. 82 of 1968 in the Munsif's Court. In execution the house was put to auction sale on 17-11-1969 and this was purchased by defendant 3 (son of defendant 1) for a sum of Rs. 16,000/-. The sale was confirmed on 28-1-1970 followed by the issue of the certificate of sale dated April 23, 1970.

(3.) Meanwhile Shiv Lal died on March 7, 1968 leaving a registered will dated 16-1-1968 registered on 17th. Thereunder he bequeathed his property to the grandsons (the appellants) who are the sons of Shiam Lal alias Shiam Sunder Lal. The son was excluded by the testator. The legatees brought original Suit No. 417 of 1972 on 15-11-1972 giving rise to this appeal contending on various grounds that the decree passed in original suit No. 185 of 1965 dated July 30, 1965 was beyond jurisdiction of the Munsif's Court and is a nullity having been obtained fraudulently. It is pleaded also that the execution of that decree cannot be given recognition and the sale made in pursuance thereof on 17-11-1969 is to be considered void. The relief claimed is possession of the house cancellation of the auction sale and damages for use and occupation. In defence it is asserted that the Munsif had jurisdiction in the matter there being charge over the property and the relief for sale of the property being also sought. Shiv Lal was duly served with summons in that suit under registered cover. In the course of the execution of the decree his legal representative, namely, Shiam Lal alias Shiam Sunder Lal was brought on the record. Notice was issued and served upon him under O.21, R.66, Civil P.C. but there was no objection raised; the sale took place according to law and there was no collusion between Shiam Lal and the auction purchaser. The certificate of sale was duty issued and has attained finality.