BALESHWAR CHAUBEY Vs. RAM RANAVIJAYA PRASAD SINGH

JUDGEMENT

(1.) This appeal has been referred to a Special Bench for a decision of the question whether the sale held in violation of the provision of Section 163A, Bihar Tenancy Act is void or voidable only.

(2.) The facts are as follows. The respondent obtained a rent decree against the appellant and in execution he proceeded to sell the holding. The Court fixed the valuation after hearing the parties at Rs. 125 per acre or Rs. 78-2-0 a bigha and this was inserted in the sale proclamation which was duly promulgated. On 6-8- 1942, plot No. 3196/9 with an area of 4 bighas and 12 kathas was sold for Rs. 271-8-6, this was less than the value fixed by the Court. As the decree-holder purchaser failed to pay poundage fee, the property was ordered to be re-sold on the following day, but on that day one of the judgment-debtors, who is a brother of the appellant, Baleshwar Chaubey, filed an application for time waiving his right to fresh sale proclamation and paid Rs. 50 to the decree-holder. Accordingly, the sale was adjourned and took place on 10-10-1942, when the decree-holder purchased the same plot for Rs. 220-8-6, that is to say, after deducting Rs. 50 from the original sale price which was bid by him on 6-8-1942. As no application was filed on behalf of the judgment-debtor to have the sale set aside, the sale was duly confirmed on the expiry of 80 days. On 7-9-1944, Baleshwar Chaubey filed an application to have the sale set aside. The application was headed under Section 47 and Order 21, It. 90, Civil P.C. As the application was filed beyond 30 days of the date of the sale, the applicant rightly did not press the application under Order 21, Rule 90, Civil P.C. He, however, pressed his objection that the sale was illegal and void as the property had been sold for a sum less than the price specified in the sale proclamation and this it was urged was in violation of the clear terms of Section 163A.

(3.) The learned Munsif held that the executing Court had no jurisdiction to sell the property as he did something which is prohibited by law, and, therefore, exercised a jurisdiction which was not vested in him. In his view the sale was absolutely null and void and without jurisdiction and must be set aside. In this view, he overruled the objection of the decree-holder that the application to set aside the sale had been filed more than 30 days after the date of the sale, and also negatived the contention that one of the judgment-debtors had appeared in course of the execution proceedings and had made a part payment and had also filed a petition saying that he would not raise any objection about any irregularity in the sale if an adjournment was granted.