DAMODAR MOHAPATRA Vs. RAGHUNATH PRADHANI AND ORS.

JUDGEMENT

(1.) THE disputed property belonged to Syamsundar Naik (Respondent No. 2). His mother is Sombari Naikani (Respondent No. 3). Damodar Mohapatra (decree -holder) obtained a money decree against Syamsundar. In E.P. No. 170 of 1963 the decree -holder attached the disputed property on 13 -7 -1963. On 23 -10 -1963 judgment -debtor No. 1 got permission from the R.D.O., Nowrangpur, to sell the property to any non -hill man under Section 3 of the Orissa Regulation No. 2 of 1956. On 2 -1 -1964 Syamsundar judgment -debtor No. I sold the property to Raghunath Pradhani, Respondent No. 1, by a registered Bale deed Ext. 4. On 15 -5 -1964 the property was put to auction sale at the instance of the decree -holder. The same was purchased by Jagadish Chandra Mohapatra, son of the decree -holder. On 22 -6 -1964 Respondent No. 1 filed an application under Order 21, Rule 90, Section 47 and Section 151, Code of Civil Procedure that the sale must be set aside 0.8 he had already purchased the property by a registered sale deed on 2 -1 -1964. The objection was accepted by both the Courts below and the sale was set aside. Against confirming the order passed by the lower Appellate Court this miscellaneous Appeal and the civil revision have been filed by the decree -holder.

(2.) MR . Ramdas raises two contentions -(1) that the judgment -debtor Syamsundar Naik to whom the property admittedly belonged was not a member of the scheduled tribe and therefore the attachment and sale were not void, and, (2) that judgment -debtor No. 1 having failed to take any objection to the attachment cannot take any objection to the sale on the principle of constructive res judicata. Both the contentions require careful examination. Clause 2 of the Orissa Regulation No. 2 of 1958, the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation. 1956 (hereinafter referred to as the Regulation) defines "scheduled tribes" as specified in respect of the State of Orissa in the Constitution (Scheduled Tribes) Order, 1950 (hereinafter referred to as the order). In part IX of the schedule to the Order various scheduled tribes as prevalent in Orissa have been mentioned. There are 62 classes. judgment -debtor No. 1 admittedly belong to Bhotra caste. Bhotras do not find mention in the aforesaid 02 classes of scheduled tribes.

(3.) CLAUSE 3(1) of the Regulation lays down that notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated within a Scheduled Area by a member of a Scheduled Tribe shall be absolutely null and void and of on force or effect whatever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority. Admittedly the decree -holder and his son, the auction purchaser, are not members of the scheduled tribe. Clause 6 of the Regulation says that in execution of a money decree against a member of a Scheduled Tribe, no right, title or interest held by him in any immovable property within any Scheduled Area shall be liable to be attached and sold except as and if prescribed.