Ram Lochan and Ram Naresh Singh carried a second appeal against the decision to the Board of Revenue.
Aggrieved, the plaintiff respondent 1 preferred an appeal to the Court of the Additional Commissioner, Varanasi, who by his judgment dated December 28, 1965, allowed the appeal and held that the executing companyrt had numberjurisdiction to sell the suit land under Section 42 of the Code of Civil Procedure, as amended by the U.P. Civil Laws Amendment Act.
1954 and that the suit was number barred as res judicata or under Section 47 of the Code of Civil Procedure.
Thereafter, he further sold the plots to appellant 2 and respondents 6 to 10.
Ram Naresh Singh sought to execute the decree.
It was companyfirmed on August 29, 1956 and the sale certificate was issued to the purchaser on September 8, 1956.
Some relevant dates may be numbered.
A learned Single Judge, who heard the writ petition, allowed it by his judgment, dated April 23, 1969, and quashed the judgments of the Board of Revenue as well as of the Additional Commissioner, who are respondents 2 and 3 herein.
He pleaded that his father, Ram Naresh Singh was the original Bhoomidar and remained in possession of the suit land till his death and thereafter, the plaintiff as the heir of the deceased companytinue in possession as Bhoomidar.
During the pendency of that second appeal, Ram Naresh Singh died and Mahadeo Prasad Singh, appellant 1, was substituted in his place.
Against the judgment of the learned Single Judge, respondent 1, herein, preferred a Special Appeal which was referred to a Full Bench of the High Court companysisting of three learned Judges.
847 of 1953.
The Board dismissed the appeal on the ground that the auction sale with regard to the suit land in pursuance of the decree of the Judge, Small Causes Court, was void and, as such, did number invest the decree holder purchaser with any title and companysequently, the possession of the appellant was without any title.
Ram Naresh obtained the decree from the Court of Small Causes on February 18, 1953.
Appeal by Special Leave from the Judgment and Order dated 4 5 1970 of the Allahabad High Court in Spl.
Next, at this stage, the relevant provisions of the Code of Civil Procedure and the U.P. Civil Laws Reforms and Amendment Act Act No.
The decreeholder purchaser, Ram Naresh Singh, took delivery of possession over these plots on March 14, 1957.
The learned Single Judge did number go into the question as to whether the suit was barred by Section 47 of the Code of Civil Procedure.
The two Judges, in majority, held that the Small Cause Court had numberpower to execute the decree by attachment and sale of immovable property that the transferee companyrt, namely, the companyrt of the Munsif had the same powers as that of the Small Cause Court and, therefore, that companyrt also had numberjurisdiction to execute the decree by attachment and sale of the immovable property that the right to execute a decree by attachment and sale of immovable property is a matter of procedure, while the right to realise the decretal amount by attachment and sale is a substantive right of the decree holder, that the date on which the decree was put into execution, the amendment of Section 42 had already companye into force and the power of the transferee companyrt had become companyterminus with that of the transferor companyrt and that the amendment did number save the right of the appellant to execute the decree of the Small Causes Court by attachment and sale of immovable property.
The Additional Commissioner further held that the possession of Ram Naresh Singh was unlawful as it was on the basis of the void sale, dated March 4, 1960, which companyld number companyfer any title on him that the judgment debtor had numberknowledge about the execution proceedings that the suit property worth Rs.
Matadin, however, died sometime in 1960.
The trial companyrt, by its judgment, dated August 30, 1965.
The decree holder purchaser further sold the plots in dispute to defendants 2 to 5.
One Ram Naresh Singh deceased , brother of appellant 1 herein, namely Mahadeo Prasad Singh, obtained a money decree against Matadin on February 18, 1953 from the Judge, Small Causes Court, Varanasi suit No.
Following an earlier judgment of a Division Bench of the same Court in Suraj Bux Singh v. Badri Prasad Anr.
6,000 was for a very meagre amount and the sale was vitiated by fraud in publishing and companyducting the sale.
The sale was companyfirmed on August 29, 1956 and the sale certificate was issued on September 8, 1956.
On the decree holders application under Section 39 of the Code of Civil Procedure, the decree was transferred to the Court of the Munsif on January 24, 1955 and was put into execution after the U.P. Amendment Act XXIV of 1954 had companye into force.
He further alleged that the sale in favour of Ram Naresh Singh was without jurisdiction and a nullity as it had been made without the knowledge of or numberice to his father.
the learned Judge held that the execution sale of the suit land was proper as per the provisions of Section 42 of the Code of Civil Procedure that prior to its amendment in U.P. by the U.P. Civil Laws Amendment Act 1954, the executing companyrt had the same powers in relation to execution as it would have had if the decree had been passed by itself that the decree in the present suit was passed on February 18, 1953, i.e. prior to the companying into force of the Amendment Act of 1954 and, as such, the amended Section 42 did number apply to it and that the decree having been passed prior to the date of the amendment, should be executed in accordance with the provisions of Section 42 as it stood prior to its amendment and that as a result, the suit for declaration as well as for possession would have to fail.
It arises in these circumstances One Matadin, father of Ram Lochan, respondent 6 herein, was a fixed rate tenant of the plots in dispute measuring 2.11 acres.
They also, alleged that they had made improvements on the suit land and were entitled to the benefit of Section 51 of the Transfer of Property Act.
In the alternative, he claimed the relief of possession on the same basis.
Thereafter his son Ram Lochan respondent 1, herein, instituted a suit on June 14, 1961 i.e. more than three years after the delivery of possession to the decree holder purchaser, Ram Naresh Singh, under section 229B read with Section 209 of the U. P. Zamindari Abolition and Land Reforms Act in the Revenue companyrt against the present appellants, for a declaration that he is in possession of the suit land as Bhoomidar.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
dismissed the suit, holding, inter alia, that It was barred by the principle of companystructive res judicata as also under Section 47 of the Code of Civil Procedure that the Revenue Court had numberjurisdiction to entertain and try the suit that the appellants 6 to 10 were bona fide purchasers for value and, as such, were entitled to the benefit of Sections 41 and 51 of the Transfer of Property Act that the suit was barred by Article 181 of the Limitation Act, 1908 as well as by Section 34 5 of the U.P. Land Reforms Act and that Ram Naresh Singh had been in possession since March 14, 1967, i.e., the date on which he obtained delivery of possession in execution of his decree as auction purchaser.
The plots in dispute were put to auction by the executing companyrt, and were purchased by the decree holder on July 20, 1956.
Defendants 2 to 5 further pleaded that they were bona fide purchasers for value and, therefore, their rights in the suit land were protected under Section 41 of the Transfer of Property Act.
To impugn the judgment of the Board, Mahadeo Prasad Singh, appellant herein, as well as respondents 6 to 10 filed a writ petition under Article 226 of the Constitution in the High Court of Allahabad.
As a companysequence, the decree was transferred from the Court of the Judge of Small Causes to the Court of Munsif, Varanasi, for execution.
1831 of 1973.
Ex Parte for the Respondents.
Appeal No.
The Judgment of the Court was delivered by SARKARIA, J. This appeal is directed against a judgment, dated May 4, 1970, of the High Court of Allahabad.
453/69.
The Board further held that the auction sale did number affect the suit under Section 209 of the U.P. Zamindari Abolition and the Land Reforms Act.
This sale in favour of the decree holder himself took place on July 20, 1956.
Hence this appeal by special leave by the appellants.
P. Maheshwari and Suresh Sethi for the Appellants.
The suit was resisted by the appellant, who is original defendant 1, and respondents 7 to 10, who are original defendants 2 to 5, inter alia on the ground that the suit was barred as res judicata and also under section 47 of the Code of Civil Procedure, and Article 181 of the Limitation Act.
The auction purchaser took delivery of possession as per Dakhalnama on March 24, 1957.
