DILIP KUMAR Vs. BHAIYALAL

JUDGEMENT

(1.) THIS appeal has been preferred by defendant against the judgment and decree dated 25. 9. 1995 passed by XIIth Additional Judge to the Court of District Judge, Indore, in Civil Appeal No. 1/94.

(2.) THE facts of the case, in brief, are that the 'gumati' belonging to the respondent No. 1/plaintiff Bhaiyalaj was attached in Case No. 219/76/81-82 by Additional Tehsildar in execution of revenue recovery certificate issued for recovery of maintenance allowance in view of the order passed in M. J. C. No. 37/89 under Section 125 of the Code of Criminal Procedure in favour of Respondent No. 3-Jamnabai. This 'gumati' was auctioned by the Additional Tehsildar and possession of 'gumati' was given to the appellant and a sale certificate was issued in his favour. The respondent Bhaiyalal preferred an appeal bearing No. 42/83 challenging the attachment and auction-sale before the Sub-Divisional Officer, Indore, who allowed the same vide order dated 23. 2. 1985 holding that the auction of 'gumti' was not in accordance with law. Against the order of the S. D. O. the appellant preferred Second Appeal (No. 181/84-85) under Section 44 (2) of the M. P. Land Revenue Code, 1859 (for short 'the Code') before the Additional Commissioner (Revenue) Indore Division, who dismissed the same by order dated 28. 12. 1983. This order was challenged in a revision petition (No. 32/2/85) by the appellant before the Board of Revenue which was allowed by order dated 30. 4,1995 and orders of the Commissioner as well as of the S. D. O. were set aside and the order of Additional Tehsildar confirming the sale of the Gumaties in favour of the appellant was maintained. The Board of Revenue held that the order of the S. D. O. was final, therefore, appeal was maintainable. The respondent No. 1 was duly served with the notice of auction-sale, yet he remained absent. The Board of Revenue also held that the objection to auction-sale filed by Rajkumar were barred by time, the Tehsildar was, therefore, perfectly justified in rejecting his objections. The respondent No. 1 filed M. P. No. 725/85 in this Court challenging the order passed by the Board of Revenue. This petition was dismissed by this Court by order dated 4. 7. 1987. Thereafter, the respondent/ plaintiff filed Civil Suit No. 67-A / 90 in the Court of IXth Civil Judge Class I, Indore, on the pleadings inter alia that the order of maintenance dated 27. 2. 1980 passed in M. J. C. No. 37/79 has been setaside in Cri. Rev. No. 163/84 by an order dated 27. 3. 1985, therefore, the recovery certificate issued by Criminal Court for recovery of arrears of maintenance has become infructuous and consequently the sale certificate has become nullity. The sale certificate was obtained by fraud. The auction-sale proceedings were illegal. He prayed for declaration that auction-sale proceedings being without jurisdiction are null and void and for possession.

(3.) THE appellant-defendant in his written statement raised, inter alia, a ground to the effect that the order passed by this Court in Misc. Petition No. 725/85 operates as res judicata to the present suit. In view of the pleadings of the parties, the Trial Judge framed the following issues : Issue No. 9 : Whether the suit is barred by res judicata ? issue No. 10 : Whether the auction proceedings of the Gumaties were not challenged in previous suit, therefore, the present suit is barred under Order 2 Rule 2 C. P. C. ? issue No. 10 was decided in favour of appellant-defendant. However, issue No. 9 was decided against him and it was held vide order dated 21. 12. 1993 that the order passed by this Court in Misc. Petition No. 725/85 dated 4. 7. 1987 operates as res judicata under Section 11 Explanation VIII of the C. P. C. and dismissed the suit. The respondent-defendant challenged this judgment and decree in Civil Appeal No. 1/94. The learned XIIth Additional Judge to the Court of District Judge allowed the appeal and held that the order passed by this Court in Misc. Petition No. 725/85 dated 4. 7. 1987 does not operate as res judicata and he set aside the judgment and decree passed by the Civil Judge, dated 21. 12. 1993 and remanded the case for trial, this judgment and decree have been challenged in this appeal.