Sia Ram v. Jagat Narain — 1979 DIGILAW 1313 (ALL)

JUDGMENT K.M. Dayal, J. -This second appeal arises out of a suit for a declaration that the execution proceedings in Execution Case No. 48 of 1955 and the decree in Suit No. 26 of 1961 were void and inoperative against the plaintiff and that the defendant was not entitled to get possession in pursuance of the aforesaid decree. An injunction was also sought restraining the defendant from interfering with the possession of plaintiff over the property in suit. The suit has been dismissed by both the courts below and the plaintiff has come up in the second appeal. The dispute has been confined to plots Nos. 359/A and 435/B alone before this Court. 2. According to the plaintiff he was a sirdar of the aforesaid plots. The defendant obtained a money decree against the plaintiff. The decree was put into execution by sale of agricultural holding of the plaintiff in Execution Case No. 48 of 1955. The disputed plots thereafter were auctioned by the court, The plaintiff did not raise any objection in the execution proceedings and subsequently occupied the plots forcibly. Thereupon the defendant respondent filed Suit No. 26 of 1961 against the plaintiff for his ejectment claiming that he was Bhumidhar of the disputed plots, by virtue of the execution sale. The suit was also contested and the appeal against the judgment arid decree failed holding that the defendant-respondent was the Bhumidhar of the disputed plots. 3. In the instant case two points have been raised by the learned counsel tor the appellant. His first contention was that the disputed plots being sirdari plots could not have been sold in execution of the decree in view of Section 153 of the U. P. Zamindari Abolition and Land Reforms Act. The relevant portion of the section, as it stood at that time, reads as under:- "The interest of a Sirdar or Asami shall not be transferred except as expressly provided by this Act." The present section reads as under:- "Except as expressly permitted by this Act, the interest of a Sirdar and Asami shall not be transferable." 4. Clause 2 need not be quoted as the same is not relevant for the purposes of the present case. Relying upon the aforesaid section the learned counsel contended that these two plots which were recorded as sirdari plots could not be sold in execution of the decree. Clause 2 need not be quoted as the same is not relevant for the purposes of the present case. Relying upon the aforesaid section the learned counsel contended that these two plots which were recorded as sirdari plots could not be sold in execution of the decree. It was also contended that the sale was void as the order of the court for sale of sirdari plots was wholly without jurisdiction. The learned counsel relied upon a case reported in AIR 1954 SC 340 Kiran Singh v. Chaman Pashwan. In that case it was held that a decree or order passed without jurisdiction was a nullity and could be challenged anywhere and even in execution proceedings as being void. The Courts below have found that the execution proceedings were and the sale was made in accordance with the provisions of Civil Procedure Code. It was further found that the judgment-debtor did not raise the objection about the non-alienability of the property under Section 47 of the Civil Procedure Code and he could have very well raised that objection. It was further contended that as the objection was not raised under Section 47 of the Civil Procedure Code, Clause 1 of the aforesaid section barred the present suit. 5. The learned counsel for the appellant relied upon a case Sri Ram v. Ram Dulari in Second Appeal No. 2065 of 1968 decided by a learned single Judge of this Court. In that case it was held that sirdari plots could not be sold in execution of a decree. Looking to the section, as it stood at that time, the interest of a Sirdar could not be transferred except as provided by the Act. The Act, on the face of it, did not provide for transfer of the Sirdari rights. Under Section 284, as it stood at that time, the holding of a Bhumidhar or Sirdar could be sold for recovery of arrears of land revenue. There was no provision by which the sale of Sirdari land was provided. Obviously, the interest of the Sirdar could not be sold in execution of the decree. Under Section 284, as it stood at that time, the holding of a Bhumidhar or Sirdar could be sold for recovery of arrears of land revenue. There was no provision by which the sale of Sirdari land was provided. Obviously, the interest of the Sirdar could not be sold in execution of the decree. However, the order of the Execution Court ordering such a sale could be challenged by way of objection under Order XXI Rule 66 C. P. C. or by filing an objection under Section 47, C. P. C. The matter was undoubtedly between the judgment-debtor and the decree-holder and it related to the satisfaction of the decree. Section 47 specifically bars a suit. Learned counsel (for the respondent) cited AIR 1961 All 178 Raman Lal v. Shanti Lal. It was Execution First Appeal and the objection was that the property was not liable to sale under Section 60 of the Civil Procedure Code. In that case the sale was confirmed without any objection by the judgment-debtor and it was held by the learned Judge that the sale was binding as no objection under Section 47 was raised. It was further held that as the objection was not raised under Section 47 of the Civil Procedure Code that operated as res judicata and the sale could not be challenged by a separate suit. 6. Another case relied by the learned counsel was reported in AIR 1961 All 436 Narsingh Datt v. Ram Pratap. In that case as well it was held that if no objection was raised under section 47 the subsequent objection was barred by res judicata. The last case relied upon by the learned counsel for the respondent is a Division Bench case reported in AIR 1963 All 320 Haji Rahim Buksh and Sons v. Firm Shami Ullah. In that case it was held that if the judgment-debtor claimed that sale was nidi and void, he could get their declaration under Section 47 of the Code of Civil Procedure. In that case the property that was sought to be attached was outside the local limits of the jurisdiction of the court and it was held to be void. In that case it was held that if the judgment-debtor claimed that sale was nidi and void, he could get their declaration under Section 47 of the Code of Civil Procedure. In that case the property that was sought to be attached was outside the local limits of the jurisdiction of the court and it was held to be void. In that case the sale was held to be void but as the judgment-debtor failed to raise any objection prior to sale itself, the objections under Section 47 could not be granted and the sale could be challenged under Order XXI Rule 90, C. P. C. In that case it was held that the Civil Judge should decide the objections under Order XXI Rule 90, C. P. C., but it is clear that a declaration had to be sought relating to the void nature of the sale. 7. In the present appeal, however, we are faced with another difficulty, that is after the execution of sale was made possession was delivered to the decree-holder and thereafter the decree-holder filed a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. In that suit the title of the parties was gone into and a decree was passed holding that the plaintiff (judgment-debtor) had no right left to the plots and the suit for ejectment was decreed. In Suit No. 26 of 1961 that decree has become final. No doubt that decree has also been challenged in the instant suit but in absence of any ground like fraud, misrepresentation or non-compliance of any mandatory provision of the procedure the decree could not be challenged". No reason has been given why the decree was void except that the decree recognised the execution sale. 8. In my opinion, the decree of the Revenue Court under Section 209 was passed by a competent Court and had full jurisdiction to decide the controversy before it. The learned counsel for the appellant has relied upon a case reported in 1973 All WR (HC) 226 that was a writ petition challenging the orders passed in a suit under Section 229-B of U. P. Zamindari Abolition and Land Reforms Act. The maintainability of the suit was questioned and the question having been decided against the petitioners by the Revenue Courts. The Board of Revenue dismissed the petitioners suit. The maintainability of the suit was questioned and the question having been decided against the petitioners by the Revenue Courts. The Board of Revenue dismissed the petitioners suit. The judgment was affirmed in writ petition by this Court. No doubt the plaintiffs could have challenged the judgment of the Revenue Court passed in Suit No. 26 of 1961 as illegal but the judgment does not become void, so as to be ignored and could not be challenged by a subsequent suit. If the plaintiff wanted to challenge that judgment, he could have filed a writ petition against the same. But in the subsequent suit that judgment operates as res judicata and cannot be questioned. It is settled that even wrong judgments between the parties are binding as res judicata vide 1974 All LJ 227 Smt. Biranwali v. Harbans Singh. 9. Even if we agree that the execution of the sale in favour of the defendant-respondent was void, the subsequent suit having been decided and the title of the defendant having been affirmed, the present suit would be clearly barred by res judicata. The effect of the res judicata cannot be avoided merely by challenging the previous decree in the suit. If the previous decree was passed by a competent court having no defect in its jurisdiction either relating to the subject-matter or relating to the territorial limits, the parties will be bound by it. 10. The learned counsel for the respondent cited 1965 All LJ 242; that was a case where the property of a Bhumidhar was sold in execution of a decree. That case is clearly distinguishable from the present case as section 154 does not lay down an absolute bar to the transfer of the property. The right of Bhumidhar to transfer was there but it was restricted to a particular class of persons. However, under Section 153 the sale could not be made except as provided under the Act. Obviously that case has no application to the facts of the present case. 11. The learned counsel for the appellant relied on a case reported in AIR 1978 SC 1820 Raghunath Pradhani v. Damodar Mahapatra. In that case the property of the judgment-debtor, who belonged to Scheduled Tribe was put to sale. The decree-holder himself alleged that the judgment-debtor belonged to Scheduled Tribe. 11. The learned counsel for the appellant relied on a case reported in AIR 1978 SC 1820 Raghunath Pradhani v. Damodar Mahapatra. In that case the property of the judgment-debtor, who belonged to Scheduled Tribe was put to sale. The decree-holder himself alleged that the judgment-debtor belonged to Scheduled Tribe. In spite of that fact having been brought to the notice of the court the auction was made. It was contended that as the judgment-debtor did not take any objection to the attachment of the property he could not raise the objection at the time of sale. Their Lordships of the Supreme Court held that the objection could be raised at the time of sale and was not barred either by actual or by constructive res judicata. That case has no application to the instant case. 12. In the result, the appellants claim i that he was still a Sirdar of the land and that the proceedings in the execution sale were null and void cannot be sustained, firstly because no objection was raised under Section 47 and the instant suit was barred under sub-section (1) of Section 47 of the Code of Civil Procedure. Secondly assuming that the present suit could be treated as an objection under Section 47. the same would be barred by the judgment and decree passed in Suit No. 26 of 1961 in a suit under Section 209 of the Zamindari Abolition and Land Reforms Act by the principles of res judicata. I have already mentioned above that there was no such infirmity in the decree passed by the Revenue Court under Section 209 of the Zamindari Abolition and Land Reforms Act that the decree could be said to be a nullity so as to be ignored. The appeal fails and is hereby dismissed with costs.