SIBA BEHERA Vs. MANGULI DEI AND OTHERS

JUDGEMENT

(1.) The above appeal is against the confirming judgments of the Courts below decreeing the plaintiff suit thereby holding that the Court sale of the suit property is invalid and that the decree-holder, defendant No. 1 and the subsequent purchaser, defendant No. 4 be restrained from interfering with the possession of the plaintiff.

(2.) The plaintiff and defendant No. 2 are sister and brother being the heirs of Kanduri Defendant No. 1 brought a suit against Kanduri in the small cause Court for realisation of Rs. 335.00. The suit was decreed and in Execution case No. 140 of 1971 the suit property measuring an area of Ac. 66.06 decimals out of the total area of Ac. 80.00 decimals belonging to the judgment-debtor Kanduri was put to auction. After the sale was confirmed the decree-holder auction purchaser took possession on 3-3-76. Later he sold the property to defendant No. 4 for valuable consideration. During the pendency of the execution proceeding Kanduri died. It is the case of the plaintiff that although she was one of the legal heirs, the decree-holder having not substituted her the sale was invalid. Defendants 1 and 4 filed separate written statements and contested the case. Their main plea in defence was that since the brother of the plaintiff contested the execution proceeding, it was not necessary further to implead the plaintiff as party particularly when Kanduri himself was contesting the case.

(3.) Both the Courts below held that the plaintiff was the legal heir and her non-impletion in the execution proceeding vitiated the sale. It was further held that since the parties admittedly belonged to the scheduled caste and no prior permission having been obtained from the revenue authorities under the provisions of Sec. 22 of the Orissa Land Reforms Act (hereinafter referred to as the 'O. L. R. Act'), the sale was also invalid on, that score.