JAYANAND CHOUDHARY Vs. DUKHIA MALLAH

JUDGEMENT

(1.) In my opinion, the Court of appeal below erred in law in distinguishing the case in hand from that of Baijnath Prasad Sah v. Ramphal Sahni, 1982 BLJR 110: (AIR 1962 Pat 72) (FB) decided by the Full Bench of this Court. In the instant case, the findings of the Court of appeal below are that the notice under Order 21, Rule 22, Code of Civil Procedure, was served upon the judgment-debtors; notice of attachment was also served notice under Section 13 of the Bihar Money Lenders Act was also served; valuation was fixed by the executing Court on the 1st October, 1959, and on the same date, the executing Court passed an order for sale by directing the issue of sale proclamation fixing the 17th November, 1990, as the date of sale. On this date, however, the judgment-debtors waived all objections and applied for fixation of Instalments. The prayer was allowed and they were to pay the decretal dues of the decree-holder-appellant in instalments. One or two instalments were paid; thereafter the judgment-debtors defaulted. The appellant proceeded with the execution of the decree, on default of the judgment-debtors to pay the third instalment in time. When the appellant asked the Court below for issue of fresh sale proclamation, respondent No. 1 filed objection under Section 47, Code of Civil Procedure, objecting to the sale of the property proceeded against in the execution case, on the ground of the protection under Section 49-M of the Bihar Tenancy Act being available to the judgment-debtors.

(2.) The facts seem to be admitted in this case that the judgment-debtors are Mallah by caste and that the property proceeded against in the execution case is their raiyati land. In that view of the matter, the protection of Section 49-M in terms is available to them, but the difficulty in the way of the judgment-debtors is that the point was barred on the principle of constructive res judicata in view of the majority decision of the Full Bench referred to above. The learned Additional Subordinate Judge has distinguished the Full Bench case on the ground that in that case the point of non-saleability of the property was raised after the sale was held and confirmed, while in the instant case, the objection has been taken by the judgment-debtors before the property was sold by the executing Court. Hence the second bar provided for in Section 49-M of the Bihar Tenancy Act becomes operative on the date of the sale, inasmuch as it prohibits the Court from selling the raiyati land of a member of the backward class. The learned Additional Subordinate Judge, therefore, seems to be of the view that although the saleability of the property was decided when the first order, dated the 1st October, 1959, was made directing the issuance of the sale proclamation, the property could not be sold when the objection has been taken by the judgment debtors before the actual sale. In my opinion, the learned Additional Subordinate Judge has committed act error in this regard by not correctly appreciating the majority decision of the Full Bench of this Court The majority view is that once an order for sale has been made, the point that the property is not saleable is not available to the judgment-debtors at a subsequent stage if notices and processes in the execution case had been served. The second stage is not attractive in such a case. By ordering the sale of the property proceeded against in the execution case on the 1st October, 1959, the Court must be deemed to have held that the property was saleable. That being so, it was not open to the judgment-debtors to come and say, whether before or after sale, that the property was not saleable in view of the protection available to them under Section 49-M of the Bihar Tenancy Act. If the point itself is barred, then the Court by selling the property is not doing something which it is prohibited to do by the legislature under Section 49-M or the Act, but, in law, it must be deemed to be selling a properly which is saleable, as should be deemed to have been held by the Court, by passing the order for sale earlier. In my opinion, therefore, the objection filed by respondent No. 1 was rightly dismissed by the executing Court and has wrongly been allowed by the lower appellate Court.

(3.) In the result, this miscellaneous second appeal by the decree-holder succeeds and must be allowed. The order of the lower appellate Court is set aside, the objection of the judgment-debtors, namely, Miscellaneous Case No. 109 of 1960, is dismissed but, on the facts and in the circumstances of the case, I will direct the parties to bear their own costs throughout of this proceeding