AKHECHAND Vs. MOTILAL

JUDGEMENT

(1.) THIS is an appeal under section 100 of the Code of Civil Procedure, by the auction-purchaser and Mst. Dhirajbai Decree Holder against the reversing judgment and decree, passed by the learned Additional District Judge, Durg, in civil appeal No. 74-A of 64, whereby, the learned Judge decreed the suit of the plaintiffs-respondents, and declared that the auction sale conducted regarding their two holdings of unirrigated lands in execution proceeding of Civil Suit No. 90-A of 54, was illegal and without jurisdiction of the civil Court, and the respondents were, the Bhumiswamis of the suit land and they be put in possession. The plaintiffs-respondents were also allowed costs throughout.

(2.) THE facts in brief, giving rise to this second appeal were, that the appellant No. 2, obtained a money decree against the respondents in civil suit No. 90-A of 1954, from the Court of the Civil Judge, Class II, Bemetara, and in execution of that decree, the two holdings of unirrigated lands, measuring 8.38 acres, and 3.30 acres separately assessed to land revenue, were attached on 23-12-1960, and the auction sale was held on 12-9-61, and the sale was confirmed on 5-11-62. THE appellant No. 1 is the auction purchaser. THE respondents preferred an objection to the sale, under Order 21, rule 90 of the Code of Civil Procedure, on 31-10-64, contending that the sale of the property in question was illegal and void, under section 165 (7) of the Madhya Pradesh Land Revenue Code, 1959, as each of the holding was less than 10 acres. This application was dismissed. THEreupon the respondents filed a civil suit, No. 65-A of 1963, on 11-9-63, and sought a declaration as aforesaid, but ultimately on 26-6-64, the present suit was treated as an application under section 47 of the Code of Civil Procedure.

(3.) SHRI V. S. Pandit, learned counsel for the appellants, has contended before me that the learned Judge has fallen into an error in coming to the conclusion that after the confirmation of the sale in the instant case, the respondents had a right to file an application under section 47 of the Code of Civil Procedure and get a declaration that the property in question was neither attachable nor saleable in the execution of the decree, and he cited in support, a ruling in Janak Raj v. Gurdial Singh and another, . A I R 1967 SO 608. Kashiram Ajitsingh and others v. Metal Trading Co., and another, 1968 MPLJ 201. and Mcrla Rarnanna v. Nallaparaju and others (supra).