ASHFAQ AHMAD Vs. NEHRU SINGH

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution filed by Sarfaraj Ahmad Khan, who died during pendency of the petition and his L. Rs. have been brought on record, praying for quashing of the temporary injunction granted by the trial Court and affirmed in appeal. This Order will also dispose of MCC No. 74/86 (Ashfaq Ahmad and others v. Nehru Singh and others) which is an application for taking action under Contempt of Courts Act against the respondents.

(2.) ORIGINAL Petitioner Sarfaraj Ahmad Khan owned khasra nos. 189, 199, 201, 202, 230 247, 248, 19 and 21 area 42.52 acres in village Dhamdhoosar, Tahsil Goharganj, District Raisen. As he fell into arrears of Takavi dues, revenue recovery proceedings for Rs. 1055.19/ - were started against him and the entire land was attached in 1958 and sold in auction on 20 -3 -1958 under Bhopal Land Revenue Act, 1931, as arrears of land revenue. But the auction was set aside by Collector on 5 -9 -1958 and directed readction of the lands in blocks. Therefore, proclamation were issued and auction sale was held on the spot on 2 -5 -1962 by Naib Tahsildar and the auctions were knocked down for Rs. 3,200/ - in favour of respondents 1 and 2 Nehru Singh and Lalaram. The Naib Tahsildar forwarded the papers to Tahsildar who accepted the bids on the same day The auction purchasers deposited 1/4th of the auction amount of Rs. 800/ - on that day Sale certificate was issued on 23 -6 -1962. Sarfaraj Ahmad Khan filed an application before the Collector under Rule 44 of Scheduled of M. P. Land Revenue Code, 1959, on the ground that Tahsildar was in error in confirming the auction sale when the balance amount of the auction money was not deposited by auction purchasers within the prescribed period of 15 days from the date of sale. The Collector by his order dated 21 -5 -1963 held that the case was governed by Bhopal State Land Revenue Act which was in force when the recovery proceedings were started and, as such, the application under Rule 44 of Schedule -I of M. P. Land Revenue Code, 1959, was not maintainable. The application could also be not treated as one under section 153 of the Bhopal Act as it was not forwarded by Tahsildar. But in appeal preferred by Sarfaraj Ahmad Khan, the Additional Commissioner set aside the auction on 5 -8 -1964 after finding the auction sale to be void because the auction purchasers did not deposit balance 3/4th amount of the auction money within the prescribed period. Second appeal preferred by the auction purchasers to the Board of Revenue was rejected on 22 -5 -1967 on the ground that the case was governed under Bhopal Act which did not provide for any second appeal. The auction purchasers filed M P. No. 301/68 in this Court and by order dated 25 -11 -1968 this Court held that the auction was held under the 1959 Code and second appeal lay to the Board of Revenue. The case was, therefore, remanded for a fresh decision. The Board of Revenue on 17 -7 -1969 on reconsideration of the matter held that the sale took place on 2 -5 -1962 when 1/4th of the auction money was deposited and the balance 3/4th of the amount was deposited on 28 -5 -1962 and the deposit being not within the prescribed period of 15 days, the sale became void and of no effect. The contention of the auction purchasers that they were informed about confirmation of the auction by Tahsildar by notice dated 14 -5 -1962 which was received by them on 25 -5 -1962 and, therefore, the period of 15 days should be counted from 25 -5 -62 and as such the amount was deposited within the prescribed period of is days, was not accepted. The auction purchasers after learning about acceptance of their bids by Tahsildar had deposited 1/4th of the amount on 2 -5 -1962 itself and they had the knowledge of acceptance of their bids on that date itself. The auction purchasers then filed M. P. No. 213/70 which was dismissed on 6 -8 -1970 holding that the auction purchasers having not deposited 3/4th of the auction price within is days from the date of sale, the sale was bound to be set aside. The auction purchasers then filed Special Leave Petition No. 463/71 which was dismissed by the Supreme Court on 16 -1 -1985 holding that on the finding of the Board of Revenue that 3/4th of the auction price was not deposited within 15 days of the date of sale, the sale has to be set aside, The High Court dismissed the writ petition and the Supreme Court found no reason the interfere with the order of the High Court. 1978 JLJ 51, and so there was a prima facie Case and the balance of convenience was in favour of the plaintiffs. Sarfaraj Ahmad Khan preferred an appeal before the District Judge who by order dated 19 -11 -85 affirmed the findings of the trial Judge and confirmed the temporary injunction. 4. After having heard the parties we are of the opinion that the respondents 1 and 2 have shown utter contempt to the decision of the Supreme Court and the trial Court and the appellate Court have shown their ignorance about the provisions of law and the binding nature of the decision of the Supreme Court and about the principles of res judicata contained in S. 11, CPC. To some extent, the Civil Judge can be excused that he had not much experience but that cannot be said of the District Judge who was a senior judicial officer. Both of them acted in a very casual manner without looking into the provisions and ignoring the decision of the highest Court which is the last Court for adjudication. Under Article 141 of the Constitution, the law declared by the Supreme Court is binding on all Courts within the territory of India Under section 11, CPC, no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a Court competent to try such subsequent suit and has been heard and finally decided by such Court. Under Explanation IV, any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Further, under Explanation VIII an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. It has clearly been held by the Supreme Court on the finding of the Board of Revenue that 3/4th of the auction price was not deposited within 15 days from the date of sale, the sale bas to be set aside. The High Court dismissed the writ petition on this ground and the Supreme Court found no reason to interfere with the order. The auction having been set aside, it is not open to the parties to reagitate the question as to whether the Tahsildar was justified in confirming the sale in view of the decision of the Supreme Court that the sale was void and of no effect. The same question cannot be reagitated in civil Court on the ground that the earlier decision was by a revenue Court. The decision of the revenue Court has been affirmed in writ petition by the High Court and further by the Supreme Court. That decision is as much binding as a decision in a former suit. The Supreme Court in Somawanti v. State of Punjab AIR 1963 SC 151 held that the binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.