1955 (3) TMI 47 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the auction sale under Order XXI, Rule 90 of the Code of Civil Procedure.
2. Applicability of Sections 4 and 43 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950.
3. Competency of the second appeal under Section 104(2) of the Code of Civil Procedure.
4. Jurisdiction of the executing court to set aside the sale.

Detailed Analysis:

1. Validity of the Auction Sale under Order XXI, Rule 90 of the Code of Civil Procedure:
The judgment-debtor filed an application under Rule 90 of Order XXI, alleging improper publication and announcement of the sale, and claimed substantial injury due to the auction purchaser being a benamidar for the decree-holder. The executing court dismissed these allegations, confirming the sale. However, the lower appellate court found a material irregularity in the sale proclamation process, as no sale statement was filed before issuing the sale warrant. This irregularity was deemed sufficient to set aside the sale. The court emphasized that the sale could not be set aside without proving substantial injury to the judgment-debtor due to the irregularity.

2. Applicability of Sections 4 and 43 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950:
The judgment-debtor argued that the sale was void under Sections 4 and 43 of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. The lower appellate court agreed, holding that the village share and sir land were not liable for sale under these provisions. However, the High Court clarified that Section 4(e) exempts the proprietor's interest from attachment or sale, but this does not apply to the appurtenant sir and khudkasht, which became the judgment-debtor's malik-makbuza. Section 43 exempts sir from attachment or sale in execution of a debt recovery decree, but not khudkasht. The court concluded that the decree in question was for damages, not a debt, and thus, the sale was not barred by these sections.

3. Competency of the Second Appeal under Section 104(2) of the Code of Civil Procedure:
The respondent's counsel raised a preliminary objection, arguing that no second appeal lies from an order under Rule 90 of Order XXI, as per Section 104(2) of the Code of Civil Procedure. The court noted that while an appeal is allowed under Order XLIII, Rule 1(j), Section 104(2) bars a second appeal. The court referenced previous judgments, including AIR 1936 All 763 and AIR 1942 Pat 146, to support this interpretation. Consequently, the court held that no second appeal lies in this case, but the matter could be treated as a revision.

4. Jurisdiction of the Executing Court to Set Aside the Sale:
The High Court examined whether the executing court had jurisdiction to set aside the sale under Order XXI, Rule 90, or under Sections 4(e) and 43 of the Act. The decision hinged on whether there was an illegality or irregularity in the sale process and whether the decree was for debt recovery. The court found no irregularity, as the sale proclamation was issued correctly, and the sale statement was timely filed. The court also clarified that the decree was for damages, not debt, and thus, the sale was not barred by the Act. The lower appellate court's assumption of irregularity and debt recovery was deemed unwarranted, and the executing court's order was restored.

Conclusion:
The application for review was dismissed, but the miscellaneous second appeal was allowed as a revision. The High Court set aside the lower appellate court's order and restored the executing court's confirmation of the sale. Costs of the review application were to be borne as incurred, while costs of the second appeal and first appeal were to be borne by the judgment-debtor.