SYED ABDUL GAFFAR Vs. KALAL SAYANNA

JUDGEMENT

(1.) The plaintiffs are the appellants in this appeal. Their suit for recovery of possession was decreed in the trial court, which decree was reversed by the appellate court. Hence this second appeal. The few facts necessary for this case are the following.

(2.) In execution of a money decree in Original Suit No. 143/14/56 on the file of the District Munsif's Court, Kodangal, obtained against the father of the plaintiffs, the suit lands were auctioned by the court in E.P.No. 17/3/58. On 29-9-58 the sale was held and the 1st defendant became the auction purchaser. On 28-12-1958 the sale was confirmed and a sale certificate was issued to the purchaser. On the same day possession also was delivered to him through court. The defendants Nos. 2 to 4 are enjoying the properties along with the 1st defendant. According to the plaintiffs the said court auction was hit by Sec. 47 of Act 21 of 1950 and hence void as no prior permission was obtained from the revenue authorities. Hence the suit for possession of land of Ac. 1-11 guntas In S. No. 71 of Parasapur village was instituted. The suit was filed on 15-7-1968. The defendants Nos. I to 3 contested the suit stating that the suit is not maintainable as the plaintiffs' remedy is to approach the revenue authorities under Sec. 98 of the said Act. They also contend that it was a mistake on the part of the Court in not having obtained the prior permission for the court sale and the parties should not be put to loss on that account. After the balance of sale amount was deposited by the court auction purchaser it was withdrawn by the judgment-debtor and therefore, it should be deemed that the plaintiffs have waived their right to question the sale. The suit is also barred by limitation as the court sale was held and confirmed ten years ago and an objection petition questioning the sale by the father of the plaintiffs and his brothers and sisters was also dismissed by the court. The defendants also have a right to proceed under sec. 50 (B) of the Act and therefore the suit is premature. The defendants have made improvements to the suit land since the sale and in case the suit for possession is decreed they are entitled to the value of the improvements as a condition precedent. The plaintiffs also should be made to pay the amount withdrawn by them from the court as balance of sale amount. They also stated that the decree-holder is a necessary party and in his absence the suit is bad for non-joinder of parties.

(3.) In the re-joinder filed by the plaintiffs it is stated that the decree holder is neither a necessary nor a proper party to the suit and the question of depositing the sale amount does not arise as the sale itself is null and void. No improvements have been made by the defendants. They also stated that the provisions of Sec. 50 (B) do not apply to the facts of this case.