MAHADEO PRASAD BHAGAT Vs. BHAGWAT NARAIN SINGH

JUDGEMENT

(1.) The appellant who is the defendant in the suit was a purchaser of certain property in execution of what has been described ,as a decree for money. The money decree was obtained on the footing of a loan which was the subject-matter of a mortgage of 1918 by one Bhagwat who is one of the sons of the original holder of an impartible estate, which at one time was under the jurisdiction of the Manager of the chota Nagpur Encumbered Estates. The property was released and returned in 1915 and the learned Judge in the Court below has decided that Bhagwat, the mortgagor, was one of the holders within the meaning of Section 12.A of Act 6 of 1876. No question arises with regard to that. The money decree having been obtained, certain objections were put in by the judgment-debtor as to the validity of the execution proceedings. There appear to have been three of these objection petitions in the execution Court and at least on two occasions the question whether the sale was a valid sale, that is to say, whether the executing Court had jurisdiction to sell the property in execution of a money decree, having regard to the fact that no sanction of the Commissioner had been obtained under Section 12.A, was mooted, although, as the learned Judge in the Court below points out, was not decided. The objection petitions were all dismissed and the property having come into the possession of the defendant appellant, this action was brought claiming a declaration that there having been no sanction of the Commissioner, the sale to the defendant was void. Both the Courts below have come to the conclusion in favour of the plaintiff.

(2.) The first contention of Sir Manmatha Nath Mukherjee on behalf of the defendant, appellant is that a sale in execution of a decree is not an alienation within the meaning of Section 12-A and consequently the sanction of the Commissioner was unnecessary. An authority binding upon us with regard to the point and contrary to the appellant's contention is the case in Khitnasrain Sahi v. Sarju V/s. Sarju Seth (1931) 18 A.I.R. Pat. 364.

(3.) The next contention put forward by the appellant is that this is a matter coming within Section 47, Civil P.C. as relating to execution, discharge or satisfaction of the decree and should be determined under that section and not by way of a separate suit.