KISHANLAL Vs. KIRANLAL

JUDGEMENT

(1.) This is iudgment-debtor's appeal against the lower appellate Court's order dated 3rd April, 1972, dismissing the appeal in the mat- ter of confirmation of sale by the executing Court, of his lands attached in execution.

(2.) In a money decree obtained against the present appellant-judgment-debtor KLshanlal by the decree-holder Kiranlal, proprietor of M/s. Dhanraj Chanchalmal, Naya Bazar, Lashkar, the present appellant-judgment-debtor's certain agricultural lands were attached in execution. After attachment, proclamation of sale was duly issued, and auction took place. In the auction, Krishna Pratap Singh purchased the lands in question, and sale was confirmed in his favour vide the executing Court's order dated 20th Mar. 1970. Against this confirmation of sale, an appeal had been preferred before the lower appellate Court challenging the executing Court's order of confirmation of sale on (some) grounds, the principal ground being that the lands in question were not liable for attachment and sale in view of the mandatory provisions of Sections 165, 178 (3) and 152 of the M. P. Land Revenue Code, 1959. The lower appellate Court after hearing the arguments of both the sides and on scrutiny of the record of the executing Court held that the judgment-debtor had conceded before the executing Court on 1-12-1969 that he did not want to press any of his objections whatsoever in the matter of attachment. Due to such a statement withdrawing his objections the sale had proceeded. The lower appellate Court equally held that the judgment-debtor did not raise any objections even at the time of issue of sale proclamation and the auction-sale and, therefore, the executing Court was right in confirming the sale in the absence of any objections existing at the relevant time of the sale proceedings. Consequently, the judgment-debtor's appeal was dismissed, Hence, now the present appeal.

(3.) On this date of final hearing of present appeal, neither the appellant- judgment-debtor nor his counsel is present and. hence, the appeal has to be disposed of in their absence in the light of the grounds as mentioned in the memo of appeal. It has been urged in the memo of appeal that the lower appellate Court was not competent to sidetrack the mandatory provisions of Sections 165, 178 (3) and 152 (3) of the M. P. Land Revenue Code 1959, and whether or not the judgment-debtor had pressed his objections earlier, these legal issues were required to be determined by the lower appellate Court inasmuch as there could be no estoppel or waiver against law. It has also been urged in the memo of appeal that the grounds earlier raised in paras (c), (d) and (e) of the memo of appeal filed in the lower appellate Court had not been considered and decided by the lower appellate Court, for no justifiable reason.