RAM RANBIJAYA PRASAD SINGH Vs. SUKAR AHIR

JUDGEMENT

(1.) This appeal has been referred to a Special Bench for a decision of the question whether a violation of the provisions of Section 162A, Bihar Tenancy Act, renders the sale void or voidable.

(2.) The facts are these. The appellant obtained a rent decree against the respondent and proceeded to execute it in execution case No 103 of 1943 on 23-2 1943. On 10-3-1943 a notice was issued under Order 21, Rule 22, Civil P.C. The order for attachment was issued on 12-4-1943, after the Court was satisfied that notice under Order 21, Rule 22 had been served. The attachment itself was served on 3l-519i3. On 10-6 1943, the sale proclamation was issued fixing 18-8-1913, for sale, but the sale was adjourned to 19 August. On that day the property of the judgment-debtor was sold and purchased by the decree holder for Rs. 115-13-6. The sale proclamation shows that a number of plots appertaining to khata No. 30 were advertised for sale with a total area of 3.03 acres. All these plots have been sold for Rs. 115-13-6. The decretal amount was Rs. 112-9 0 and the execution cost was Rs. 3-4-6. The bid of the decree-holder for Rs. 115-13 6 was accepted by the Court. Before the sale was confirmed one Ramchandra Prasad who was not a party to the proceedings filed a petition that he should be allowed to deposit the decretal amount with costs. On hearing the pleaders the Court passed this order on 18-9-1943: The applicant is not a party to the ease. The decree was a rent decree, but it is said that the execution is a money execution. Clearly, therefore, the interest, if any, of the applicant will not be affected by the sale. There is noting satisfactory to show that the applicant has at present any interest in the land. The petition is objected to by the pleader for the decree-holder and the petition is rejected and the prayer disallowed. On 20-9-1943, as thirty days had expired and no objection was raised, the sale was confirmed. On 4-51944, the judgment-debtor made an application that the sale should be set aside. The only ground for objection which was pressed before the Court on 9-11-1914, was that as the sale had taken place of a portion of the plot, the sale was void and must be set aside. The Court on-examining the draft sale certificate came to the conclusion that it was clear that portions of plots had been sold and as this was against the mandatory provisions of Section 162A, Bihar Tenancy Act, the sale was void. It was contended on behalf of the decree-holder before him that as the sale was a money sale and as the rent decree was in respect of a part of the holding, Section 162A, Bihar Tenancy Act, had no application. But this contention was overruled by the learned Munsif in these words: But on an examination of this provision of Chap. 13A, Bihar Tenancy Act, it will appear that Section 162A, Bihar Tenancy Act will apply in execution of a decree passed for arrears of rent irrespective of the fact whether the decree is technically a rent decree or a money decree. That being so, the sale is void and it must be set aside even at the instance of the Court. The learned Subordinate Judge in appeal, came to the same conclusion. As to the contention whether the decree in execution was a rent decree or a money decree he observed: The dakhaldehani would show that the judgment-debtor purchased 5.12 acres of land in execution of the previous rent decree of the appellant. The decree of the present execution case will show that the appellant brought the rent suit in respect of the same area of 5.12 acres of land. Therefore it is abundantly clear that 5.12 acres of land constitutes the present holding and the decree passed in respect of arrears of this holding is a rent decree. Under the circumstance Section 162A, Bihar Tenancy Act, would apply. I may also assume an alternative case. Supposing for a moment for the sake of argument that the decree under execution case has the force of a money decree, even then in my Opinion, Chap. 13A, Bihar Tenancy Act, which contains Section 162A will apply. The whole Chap. 13A applies to decrees for arrears of rent. The present decree under execution was obtained for arrears of rent. It has not been said in this chapter that it will only apply to decree for arrears of rent, which may have the force of a rent decree and not the decree for arrears of rent which may have the force of a money decree. In this view of the case also Section 162A, Bihar Tenancy Act, which is a mandatory provision will apply. Hence the second appeal to this Court.

(3.) In my opinion the Courts below were in error in thinking that this execution was not a money execution. I have already shown that the property sought to be sold was only 3.03 acres and not the whole of the land for which the rent decree was obtained. It is not a case where the Court directed the sale of a part of the holding within the terms of Section 162A. (Moreover notices were issued under Order 21, B. 22, Civil P.C. and the decree-holder expressly informed the Court on the objection raised by the third party that the execution was a money execution.