KASHIRAM Vs. METAL TRADING CO.

JUDGEMENT

(1.) THIS Second Appeal is by the judgment debtors whose objection under section 47 of the Code of Civil Procedure has been negatived by both the lower Courts.

(2.) IN execution of a money decree obtained by respondent No. 1 against the appellants certain fields held by the appellants in 'Bhumiswami' rights were attached and sold. Respondent No.2 is the auction purchaser thereof. At the time of attachment or sale of the property or even up to the confirmation of the sale, no objection was raised by the appellants that the land was not liable to be attached or sold by reason of provisions contained in section 165 (7) (a) of the Madhya Pradesh Land Revenue Code, 1959. It appears that when the land was attached, the Code had come into force, but at the time of sale or its confirmation, that objection was available to the appellants. After the sale was confirmed the auction purchaser moved the Executing Court on 21 -12 -1965 for delivery of possession. That application was resisted on verious grounds by the appellants, but not on the ground that the sale was prohibited under the above said section. The objections preferred by the appellants were rejected by the Executing Court. Thereupon the appellants for the first time filed application purporting to be under section 47 Civil Procedure Code, in which objection based on section 165 (7) (a) of the M.P. Land Revenue Code was raised. The Executing Court dismissed the application summarily, while the lower appellate Court found that the application was barred by limitation and also by the principle of constructive res judicata.

(3.) ON this aspect of the matter on the basis of the decision of the Supreme Court in Ahmed Hafiz Khan Vs. Mohammad Hassan Khan [1963 JLJ 657 =1964 RN 374], Shri Shukla submits that the sale is void and without jurisdiction and that it is not required to be set aside. By the application in question what the appellants did was to point out the Court that the sale effected by it was void and without jurisdiction and that the Court should retrace its steps. As no application or suit is required to set aside the sale which is void no objection need be filed and the failure to raise such an objection need not result in bringing into operation the principles of constructive res judicata. Section 165 (7) (a) of the M.P. Land Revenue Code, 1959 reads as under: -