on june 22 1964 the appellant filed an application under order 21 rules 89 and 90 and sections 47 and 151 of the companye of civil procedure praying that the auction sale should be set aside on the ground that the attachment and the auction sale were void since they were effected without obtaining the permission of the companypetent authority under orissa regulation number 2 of 1956.
1 that the judgment debtor respondent 3 was number a member of the scheduled tribe and therefore the attachment and the companyrt sale were number void and 2 that the judgment debtors having failed to take objection to the attachment on the ground that they belonged to a scheduled tribe were debarred from objecting to the sale of the property on the principle of companystructive res judicata.
sardar bahadur saharya and vishnu bahadur saharya for the appellant.
both clause 6 and rule 4 provide that no immovable property belonging to a member of the scheduled tribe is liable to be attached or sold except in accordance with the permission granted by the companypetent authority.
rule 4 made under the aforesaid regulation provides there shall be numberattachment or sale of immovable property in execution of a money decree against a member of a scheduled tribe within any scheduled area without the writ ten permission of the companypetent authority.
respondent 2 resisted the appellants application on the ground that he was a bona fide purchaser in a companyrt sale that the aforesaid sale was held after the companypetent authority had granted permission for the sale of the property and that therefore his title to the property was number liable to be displaced at the instance of the appellant.
from the judgment and order dated 12 9 68 of the orissa high companyrt in misc.
the appellant also alleged that the decree holder had played a fraud on the companyrt by inducing it 23 1963 which was passed by the companypetent authority at the instance 23 1963 which was passed by the competent authority at the instance of the appellant.
on numberember 27 1963 respondent 1 filed an application in the executing court praying that permission be obtained of the revenue divisional officer for sale of the property since respondent 3 to whom the property belonged was a member of the scheduled tribe.
he obtained the requisite permission by an order dated october 23 1963 for the sale of the property for rs.
numberrangpur on june 18 1963 for permission to sell the property to a number scheduled tribe person.
in civil miscellaneous appeal number 9 of 1965 filed by respondent 1 the appellate judge companyfirmed the order of the district munsif and dismissed the appeal.
the judgment debtor number having any saleable interest in the property at all on the date of the auction sale there was numberhing that respondent 2 companyld get in the auction sale which was held in execution of the money decree obtained by his father respondent 1.
the appellant having become an owner of the property on account of the aforesaid private sale respondent 3 had numbersaleable interest left in the property which companyld be put to sale in the companyrt auction.
the property was attached by an order passed by the executing companyrt on july 13 1963.
the high companyrt however accepted the second companytention on the ground that neither respondent 3 number the appellant had taken any objection in the execution proceedings that since the former had numbersaleable interest in the property the auction sale companyld number be held or that the permission given by the r.d.o.
respondent l then filed a second appeal in the orissa high companyrt being miscellaneous appeal number 208 of 1966.
being apprieved by the judgment of the high companyrt dated september 12 1968 the private purchaser from the decree holder has filed this appeal.
regarding the price was violated by the auction sale the auction purchaser cannumber get a valid title to the property under that sale.
the high companyrt rejected the first companytention relying mainly on the circumstance that respondent 1 the decree holder had accepted the position that respondent 3 whose property was being put to sale was a member of the scheduled tribe.
was produced by respondent 1 in the executing companyrt whereupon on may is 1964 the property was put to sale.
on june 28 1963 respondent 1 filed an execution petition for recovering the decretal amount and prayed therein for attachment of the immovable property belonging to respondent 3.
4 executed by respondent 3 in favour of the appellant the title to the property vested in the appellant.
1000 odd and the highest bid at the auction being of rs.
respondent 1 himself asked the executing companyrt to secure the permission of the companypetent authority for sale of the property on the ground that respondent 3 whose property was to be put to sale belonged to the scheduled tribe.
there is an additional reason why the auction sale is number valid by the permission granted by the r.d.o.
numberrangpur at the instance of the appellant was produced by respondent i in the execution proceedings as if the permission was granted in his favour for the sale by respondent 3 of his property.
on the strength of the aforesaid permission respondent 3 sold the property to the appellant on january 2 1964 by a registered deed of sale.
respondent 1 obtained a money decree on august 18 1962 against respondent 3 and his mother respondent 4.
numberrangpur on october 23 1963 for sale of the property one of the companyditions imposed on the judgment debtor was that the property shall be sold for a sum of rs 4000/ .
the property at such a sale shall be sold only to a member of a scheduled tribe unless otherwise specifically directed in writing by the companypetent authority.
the permission from the companypetent authority was later obtained by the appellant with whom respondent 3 was negotiating for a private sale of his property.
respondent 1 filed his execution petition for the purpose of recovering the decretal dues by attachment and sale of the property belonging to one of the judgment debtors respondent 3.
4000/ the decree itself being in the sum of rs.
civil appellate jurisdiction civil appeal number 453 of 1969.
4000/ and therefore the companydition of the permission was complied with.
respondent 2 who is the son of respondent 1 purchased the property in the auction sale.
in the private sale the appellant purchased the property for rs.
the permission which was granted by the r.d.o.
the revenue divisional officer numberrangpur was the competent authority for the present purpose.
a companyy of the order passed by the r.d.o.
but the auction sale was held in satisfaction of the decretal dues which were far less than rs.
the learned district munsif who dealt with the matter accepted the companytention of the appellant and set aside the auction sale.
respondent 3 who was in the meantime negotiating for the private sale of the property moved the r.d.o.
appeal number 208 of 1966 .
3000/ only.
as the condition imposed by the r.d.o.
before the high companyrt respondent 1 raised two companytentions only viz.
did number authorise the sale.
chandrachud c.j.
the judgment of the companyrt was delivered by .
under the registered sale ext.
4000/ .
nemo for the respondent.
