LACHMI NARAYAN LAL Vs. BHUPENDRA PRASAD SHUKUL

JUDGEMENT

(1.) All these three appeals are connected, and so have been heard together. They relate to various matters in regard to the same tenure. This tenure was created by a lease of 13-11-1906. In November 1938, a rent suit was brought for rent up to the Asin kist of the year 1345, and on 2-7-1940, this suit was decreed for a sum of Rs. 16,000 and odd. Execution was taken out in Execution case No. 3 of 1941 in the Court of the Subordinate Judge, Gaya. On 28-4-1941 sale proclamation was issued, and on 5-7-1941, the property was sold, and the landlords, decree-holders purchased the tenure for Rs. 18,000 and odd. On 4-9-1941, delivery of possession was taken.

(2.) On 21-12-1943, more than two years later an alleged mortgagee of the tenants judgment-debtors made an application under Section 47, Civil P.C., to have the sale declared void and without jurisdiction. The learned Subordinate Judge said that the contention was that the sale was void for non-compliance with the provisions of Secs.188 and 163A, Bihar Tenancy Act. He obviously meant Secs.158B and 163. The opposite party did not appear, and the learned Subordinate Judge allowed the application and held that the sale was void and without jurisdiction.

(3.) This order is the subject-matter of Miscellaneous Appeal No. 261, which is, of course, by the decree-holders and which I shall deal with first. It is quite clear that as an application under Order 21, Rule 90 the application could not succeed as it was long out of time. It would be in time, however, if the sale was without jurisdiction and the application could be treated as one under Section 47. Taking first Section 163, Section 163(2)(b) provides that the sale proclamation, inter-alia, shall state the value of the tenure or the holding or, if the property to be sold is a portion of a holding, the value of such portion as determined by the Court in the manner specified. Section 163(5) provides that before issuing the sale proclamation, the Court executing the decree shall hear the parties and estimate the value of the holding or of that portion of the holding the proceeds of the sale of which it considers will be sufficient to satisfy the decree.