Sikander Khan and Others Vs. Radha Kishan (Dead) by Lrs. & Others
EmailAppeal: Civil Appeal No. 2238 of 1982
Petitioner: Sikander Khan and Others
Respondent: Radha Kishan (Dead) by Lrs. & Others
Apeal: Civil Appeal No. 2238 of 1982
Judges: V. N. KHARE & B.N. AGRAWAL, JJ.
Date of Judgment: Sep 08, 2001
Head Note:
CIVIL LAWS
Civil Procedure Code, 1908
Order 21, rules 91, 92 with Madhya Bharat Land Revenue Code – Section 71 – Execution of money decree – Agricultural land auctioned by collector and also confirmed – No confirmation by civil court. Held that sale was a nullity in absence of confirmation by civil court and confirmation by collector is nowhere prescribed. Appeal allowed. (Para 4)
JUDGEMENT:
Order
1. Anandi Lal, the predecessor-in-interest of respondent no. 1 is the decree-holder and respondent no. 2, Dilawar Khan is the judgment debtor.
2. The predecessor-in-interest of the appellants herein purchased the land contained in survey plot nos. 1253 and 1183/1, situate at village Girwar, district Shajapur in the state of Madhya Pradesh. It appears that Anandi Lal obtained a money decree against Dilawar Khan. The decree-holder put the decree in execution. The executing court sent a request to the collector, Shajapur to conduct the sale of the property belonging to the judgment-debtor under section 71 of the Madhya Bharat Land Revenue Code (hereinafter referred to as the ‘Code’). It further appears that the collector, Shajapur on receipt of the request from the civil court, issued a sale proclamation for sale of agricultural plots – survey nos. 1253 and 1183/1, which was earlier purchased by the appellant from the judgment-debtor, Dilawar Khan. However, the sale was knocked down on 24th May, 1958 in favour of the decree-holder and the said auction sale was confirmed by the collector on 4th August, 1958. When the predecessor-in-interest of the appellants came to know of the sale of their land, they filed an objection under order 21, rule 90 for setting aside the auction, inter alia, on the following ground:
1) that the collector had no jurisdiction to confirm the sale and it is only the civil court which had the jurisdiction to confirm the auction sale;
2) that the auction sale took place within eight days of the sale proclamation and, therefore, the auction sale is illegal and nullity;
3) the decree holder, not being the agriculturist, could not have purchased the land in view of sub-section (3) of section 71 of the Code.
3. There is a chequered history of litigation between the parties. Suffice it to say that lastly the executing court allowed the objection of the appellants and set aside the auction sale in favour of the decree-holder. The decree-holder preferred an appeal before the appellate court, which was dismissed. Thereafter, the decree-holder preferred a revision petition before the High Court and the High Court by the judgment under challenge set aside the order of the appellate court and consequently, the objection filed by the appellants stood rejected. It is against the said judgment, the appellants have preferred this appeal.
4. Learned counsel appearing for the appellants urged that the view taken by the High Court that the collector had jurisdiction to confirm the auction sale was patently erroneous. In other words, what the learned counsel contends is that under section 71 of the Code read with order 21, rule 92 CPC, the collector is authorised only to hold and conduct the auction sale but he has no power to confirm the sale. According to him, the confirmation of auction sale can only be done by the civil court after deciding the objections, if filed. We find substance in the argument. Order 21, rule 92 of Code of Civil Procedure provides that the civil court shall have power to make an order confirming the sale and thereupon the sale shall become absolute. What section 71 of the Code provides is that where the execution of the decree is passed by the competent civil court, which cannot be satisfied and requires sale of the agricultural holding of a pucca tenant, the auction sale of such land shall be conducted by the collector on fulfilment of certain conditions. It is, therefore, crystal clear that only the auction sale of an agricultural land is to be held and conducted by the orders of the collector and not the confirmation of such sale. In view of the fact that in the present case the auction sale of appellants’ land was not confirmed by the civil court, the auction sale was a nullity and the executing court was right when it set aside the impugned auction sale. We, therefore, set aside the judgment under challenge.
5. The appeal is allowed. There shall be no order as to costs.
1. Anandi Lal, the predecessor-in-interest of respondent no. 1 is the decree-holder and respondent no. 2, Dilawar Khan is the judgment debtor.
2. The predecessor-in-interest of the appellants herein purchased the land contained in survey plot nos. 1253 and 1183/1, situate at village Girwar, district Shajapur in the state of Madhya Pradesh. It appears that Anandi Lal obtained a money decree against Dilawar Khan. The decree-holder put the decree in execution. The executing court sent a request to the collector, Shajapur to conduct the sale of the property belonging to the judgment-debtor under section 71 of the Madhya Bharat Land Revenue Code (hereinafter referred to as the ‘Code’). It further appears that the collector, Shajapur on receipt of the request from the civil court, issued a sale proclamation for sale of agricultural plots – survey nos. 1253 and 1183/1, which was earlier purchased by the appellant from the judgment-debtor, Dilawar Khan. However, the sale was knocked down on 24th May, 1958 in favour of the decree-holder and the said auction sale was confirmed by the collector on 4th August, 1958. When the predecessor-in-interest of the appellants came to know of the sale of their land, they filed an objection under order 21, rule 90 for setting aside the auction, inter alia, on the following ground:
1) that the collector had no jurisdiction to confirm the sale and it is only the civil court which had the jurisdiction to confirm the auction sale;
2) that the auction sale took place within eight days of the sale proclamation and, therefore, the auction sale is illegal and nullity;
3) the decree holder, not being the agriculturist, could not have purchased the land in view of sub-section (3) of section 71 of the Code.
3. There is a chequered history of litigation between the parties. Suffice it to say that lastly the executing court allowed the objection of the appellants and set aside the auction sale in favour of the decree-holder. The decree-holder preferred an appeal before the appellate court, which was dismissed. Thereafter, the decree-holder preferred a revision petition before the High Court and the High Court by the judgment under challenge set aside the order of the appellate court and consequently, the objection filed by the appellants stood rejected. It is against the said judgment, the appellants have preferred this appeal.
4. Learned counsel appearing for the appellants urged that the view taken by the High Court that the collector had jurisdiction to confirm the auction sale was patently erroneous. In other words, what the learned counsel contends is that under section 71 of the Code read with order 21, rule 92 CPC, the collector is authorised only to hold and conduct the auction sale but he has no power to confirm the sale. According to him, the confirmation of auction sale can only be done by the civil court after deciding the objections, if filed. We find substance in the argument. Order 21, rule 92 of Code of Civil Procedure provides that the civil court shall have power to make an order confirming the sale and thereupon the sale shall become absolute. What section 71 of the Code provides is that where the execution of the decree is passed by the competent civil court, which cannot be satisfied and requires sale of the agricultural holding of a pucca tenant, the auction sale of such land shall be conducted by the collector on fulfilment of certain conditions. It is, therefore, crystal clear that only the auction sale of an agricultural land is to be held and conducted by the orders of the collector and not the confirmation of such sale. In view of the fact that in the present case the auction sale of appellants’ land was not confirmed by the civil court, the auction sale was a nullity and the executing court was right when it set aside the impugned auction sale. We, therefore, set aside the judgment under challenge.
5. The appeal is allowed. There shall be no order as to costs.
