RAMSAGAR SINGH Vs. RAMAJODHYA MAHTON

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge, Third Court, Patna, declining to entertain objections taken by certain judgment-debtors in proceedings in execution of a decree for the payment of money. In execution of this decree, certain property was attached and was later sold on 12 April 1940. For reasons which do not appear, and which are not material, the sale was not confirmed until 2 June, 1941. On 27 May 1941, that is five days before the sale was confirmed, these judgment-debtors complained, in the first place, that, as they were agriculturists, a house which had been attached was not liable to be sold by reason of the provisions contained in Section 60(1)(c), Civil P.C.; and, in the second, that, as they were agricultural debtors, the Court executing the decree should under Section 15, Bihar Money-Lenders Act, have exempted from sale a portion at least of the land which had been attached. The learned Subordinate Judge dismissed these objections summarily on the ground that they could and ought to have been made long before they were.

(2.) It is now conceded that, in consequence of a notification which has been issued by the Government of Bihar under Sub-section (2) of Section 15, Bihar Money-Lenders Act, there is no substance in the second of the two objections which were raised. It is however contended that the learned Subordinate Judge ought to have given the judgment-debtors an opportunity of showing that they were in fact agriculturists, and it is asked that a remand should now be ordered for this purpose. The application was in effect and, indeed in terms, an application to set aside the sale which had taken place on 12 April 1940, so far as a portion of the property which was then sold was concerned. That being so the application ought to have been made within thirty days of 12 April 1940, and, as it was not made until very much later, the learned Subordinate Judge would appear to have been correct in declining to entertain it.

(3.) The learned advocate for the appellants in contending otherwise has relied mainly on the the decision in Ram Chandar V/s. Sarupa A.I.R. 1939 Lah. 113. At first sight, the circumstances in that case would appear to be analogous to those with which we have to deal here, inasmuch as the judgment-debtors there complained that they were agriculturists and that their residential house ought not to have been attached and sold, and the application to have the sale set aside was made after the sale and before its confirmation. The view taken in that case was that the question as to whether or not the property should have been sold was a question arising under Section 47, Civil P.C., and, as the Court executing the decree was not yet functus officio at the time the question was raised it ought to have decided it. When however the facts are examined more closely, it is clear that this ease stands on a very different footing. For one thing, the question which the Lahore High Court had to consider was whether or not the Court executing the decree had been correct in the view which it had taken, that any objection that the property was not liable to sale ought to have been taken before the sale actually took place and could not be taken after it.