JANKI VALLABH Vs. MOOLCHAND

JUDGEMENT

(1.) LEARNED counsel for the appellant has raised only one question to be decided by this Court in this execution second appeal, and it is whether the sale of a property which was not attached in execution but was put to sale and if no objection to such a sale was taken by the judgment-debtor at a previous stage of execution would it constitute a constructive res judicata and preclude the judgment-debtor from raising a question about the validity of sale without attachment at a subsequent stage of the execution.

(2.) IN the present case, the decree-holder obtained a decree in the year 1959, but during the pendency of the suit the houses belonging to the defendant judgment-debtor were got attached under O. 38, R. 5 of the Code of Civil Procedure. After the decree was passed, execution proceedings were taken on 7-2-1962 but that execution petition was dismissed for default on 14-4-1962. The second execution proceeding was initiated on 21-2-1970 against Janki Vallabh who was the legal representative of Shyam Sunder Das, the original defendant in the suit. Notices under O. 21, R. 64 were issued to the appellant judgment-debtor and the property which was got attached before judgment during the pendency of the suit was put to auction and the sale was knocked down on 17-3-1971. The judgment-debtor did not raise any objection about the validity of the sale that it could not take place because the property of the judgment-debtor was not attached after the first execution proceeding was dismissed. An objection under O. 21, r. 58 of the Code of Civil Procedure was, however, filed by one Kaluram in which judgment-debtor Janki Vallabh was also a party but in that proceeding Janki Vallabh did not raise a plea that the sale was illegal because the property was not properly attached under Order 21 of the Code of Civil Procedure. It so appears that the auction purchaser could not deposit the balance of the sale price within time and, therefore, the sale which had taken place on 17-3-1971 was set aside by the court. The decree-holder then applied to the executing court to sell the properties of the judgment-debtor once again. 4th, 5th and 6th October, 1971 were fixed for sale, but because of the failure of the decree-holder to deposit the fees for conducting the auction, proceedings for auction could not take place on the aforesaid dates. On 13-11-1971, Janki Vallabh, however, preferred objection that the property belonging to him could not be put to auction on the grounds, namely, (1) that the execution proceedings were barred by limitation; (2) that the property sought to be auctioned was a temple property; and (3) that the first execution having been dismissed for default on 14-4-1962, the properties could not be sold without getting them attached under the law. The executing court dismissed all these objections of the judgment-debtor on the ground that he failed to raise such objections at the time when the property was put to auction in March, 1971, and the sale was knocked down on 17-3-1971. IN the opinion of the executing court these pleas were barred on the principle of constructive res judicata and therefore it held that the judgment-debtor was precluded from raising these objections at the time of the subsequent sale.

(3.) THE object of attaching the property before it is put to sale is to secure the interest of the decree-holder and the auction-purchaser. If the property is not attached before it is sold, it would be open to the judgment-debtor to transfer his right, title and interest in that property or to encumber it in favour of a third party before the date of sale and if he does so, the decree-holder may not be able to realise the decretal amount in view of such anterior transaction or encumbrance effected by the judgment-debtor. Similarly, the auction-purchaser would also be exposed to the danger of purchasing a property in which the judgment-debtor may not have any interest at all or may be having an interest less than what he had on the date of the issue of the sale proclamation. It is in order to obviate these contingencies that attachment of the property before it is put to sale is effected, but if for one reason or the other the property could not be attached and put to sale without attachment, then it would not vitiate the sale because attachment of the property neither necessary nor is an essential step in the process of realisation of the decretal amount by sale of the property belonging to the judgment-debtor. Now it is a settled law that if the property is put to sale without attachment, then this flaw would not in any manner invalidate the sale. I find support to this view by the latest judgment of the Mysore High Court in the Karnataka Bank Ltd,, Bangalore vs. K. Shamanna (2 ). This view is further fortified by the provisions of S. 51 of the Code of C. P. wherein it has been provided that the decree can be satisfied by attachment and sale without attachment of any property. Under the old Code which contained no provision corresponding to the present S. 51, there was a conflict of opinion. One class of decided cases held that attachment was an essential preliminary to sale in execution of simple decree for money and that the absence of attachment made the sale de facto void, but the other class of cases definitely laid down that the object of attachment is to bring the property under the control of the court with a view to prevent the judgment-debtor from alienating it and that the absence of attachment was nothing more than an irregularity and did not ipso facto vitiate the sale. But that controversy has now been resolved by the legislature by enacting the present sec. 51 where it has been specifically laid down that the decree can be executed by sale without attachment of any property. In this view of the matter, I fail to understand the logic in the arguments advanced by Mr. N. M. Kasliwal on behalf of the judgment-debtor and cannot hold that the property cannot be put to sale without first attaching it. Since the judgment debtor allowed the sale to be held in the month of March, 1971, without raising this question, I feel that he should not be allowed to agitate this question at the stage of the subsequent sale and delay the execution of the decree.