N. Krishnaih Setty Vs. Gopalakrishna
& Ors  INSC 166 (3 September 1974)
REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 1911 1975 SCR (2) 975 1974
SCC (2) 624
Mysore Agriculturists' Relief Act, 1928 s.
Code of Civil Procedure (Act 5 of 1908), s. 11--Applicability.
Under s.14(1) of the Mysore Agriculturists
Relief Act 1928 no agricultural land belonging to an agriculturalist shall be
attached or sold in execution of any decree or order unless it has been
specifically mortgaged for the payment of the debt to which such decree or
order relates, The appellant filed a suit on a promissory note executed by the
father of the respondents. There was an attachment before judgment, and after
decree was passed, the properties belonging to the family were sold in
execution. The respondents were born thereafter. They filed a suit contending
that the sale of the properties in execution of the appellant's decree was void
ab initio under the Act. The trial Court decreed the suit but the first
appellate court allowed the appeal on the ground that as the respondents were
not born on the date of the sale they could not challenge its validity. The
High Court restored the judgment of the trial court.
Dismissing the appeal to this Court.
HELD ; (1) The attachment before judgment was
not valid and therefore the sale in pursuance of that attachment was void.
The suit filed by the appellant was not on
the foot of a mortgage and therefore the sale in execution of the appellant's
decree is against the provisions of s. 14(1).
The contention that s. 14(2) does no more
than lay down the same procedure as 0. 38, C.P.C., and therefore the attachment
is valid, is not correct. Section 14(2) permits an attachment only in execution
of a decree. [972 B--E] (2) The respondents were entitled to file the suit
questioning the sale. A void sale held in execution of a decree confers no
title on the auction purchaser. Therefore the joint family to which the
properties belonged did not lose their title, but continued to be owners, and
the respondents got a right to the property as soon as they were born by right
of birth. [972 E-G] (3) The suit was not barred by res judicata because : (a)
to the earlier suits referred to the respondents were not made parties; and (b)
those suits were filed in the Munsiff's court and were therefore not decided by
a court of competent jurisdiction as the present Suit was filed in the
Subordinate judge's court. The respondents were also not representatives of
their father as contemplated in S. 11, C.P.C. [972 H-973 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1748 of 1967.
From the Judgment and order dated the 6th
January 1961 of the Mysore High Court at Bangalore in. Second Appeal No.129 of
S. C. Malik A. S. K. Rao arid M. R. K. Pillai
for the appellant.
K. Rajendra Chaudhuy, for the respondents
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. This is, an appeal by certificate against the judgment of the
High Court of Mysore in a second appeal.
it,-arises out 971 of a suit filed by
respondents 1 and 2 (who will hereafter be referred to as plaintiffs) for a
declaration that the sale held in execution of the decree obtained by the
appellant (who was the 9th defendant in the, suit) in O. S. No. 31 of 1937-38
against their father and other members of their family was void ab initio. O.
S. No. 31 of 1937-38 had been filed by the present appellant on, the basis of a
promissory note executed as already mentioned by the father of the plaintiffs
and other members of that family. In execution all the sixteen items of
property belonging to the family were sold. The sale was in pursuance of an
attachment before the judgment made on 25th September1937.
The suit was subsequently decreed. In the
suit the only plea taken was that the defendants-were agriculturists entitled
to the benefit of the Mysore: Agriculturists Relief Act 1928. The plaintiffs
filed the suit for a mere declaration because they continued in possession of
the properties which had been sold in execution and purchased by defendants 10
and, 11 in the suit and subsequently purchased by the appellant. The Trial
Court decreed the suit. It should be mentioned that the suit was filed on
The plaintiffs were born respectively in. the
years 1944 and 1950. On appeal the District Judge hold that the sale was void
but allowed the appeal on the ground that the plaintiffs were not born on the
date of the sale. A Division Bench I of the Mysore High Court allowed the Second
Appeal and restored the judgment of the Trial. Court.
The main question for decision as to whether
the execution sale was void ab initio depends on the interpretation to be
placed on s. 14.of the Mysore Agriculturists' Relief Act which roads as follows:.
"14. (1) Except as otherwise provided in
subsections (2), (3), and (4) no agricultural land belonging to an
agriculturist shall be attached or sold in execution of any decree or order
passed after this Act comes into force, unless it has been specifically
mortgaged for the payment of the debt to which such decree or order relates and
the security still subsists, For the purposes of any such attachment or sale as
aforesaid standing crops shall be deemed to be movable property.
(2) The Court may at the time of passing a
decree for money directing payment by installments or at any time during the
course of execution of such decree direct the judgment debtor for sufficient
cause to furnish security for the amount of the decree and if he fails to
furnish the security required order the attachment of any agricultural land
belonging to the judgment debtor.
(3) The procedure in respect of attachments
ordered under subsection (2) shall be as far as may be in accordance with the
procedure relating to attachment before judgment under Order XXXVIII of the
Code of Civil Procedure 1908.
972 (4) No agricultural land ordered to be
attached under subsection (2) shall be sold in pursuance of such attachment
unless the judgment debtor is in arrears in respect of two or more installments
under the decree.
We are, in agreement with the view taken by
the Courts below and the High Court that the attachment before judgment made in
this case was not a valid one and therefore the sale in pursuance of that
attachment was void. We are unable to accept the argument on behalf of the
appellant that s, 14 does no more than lay down the same procedure as Order 38
of the Code of Civil Procedure and therefore the attachment was valid. Sub-s.
(1) of s. 14 lays down that no agricultural land belonging to an agriculturist
shall be attached or sold in execution of any decree or order unless it has
been specifically mortgaged for the payment of the debt to which such decree or
order relates. The suit :filed by the appellant O.S. No. 31 of 1937-38 was not
on the foot of a mortgage and therefore the sale effected in execution of the
decree obtained by the appellant is clearly against the provisions of sub-s.
(1). Sub-section (2) permits an attachment only in execution of a decree and,
therefore, there is no substance in the argument on behalf of the appellant
that the attachment effected before judgment at the instance of the appellant
is similar to an, attachment before judgment tinder Order 38 of the Code of
We are in agreement with the learned Judges
of the High Court that the view taken by the District Judge that as the
plaintiffs were not born on the date of the sale they cannot challenge its
validity is wrong. A void sale, as we have already held the sale in execution
of the decree obtained by the appellant in this case to be, confers no title on
the auction purchaser and, therefore, the joint family to which the properties
belonged continued to be the owners of that property and did not lose their
title there to. The plaintiffs got a right to the property as soon as they were
born, not by way of succession but by right of birth.
Therefore, plaintiffs were certainly entitled
to file a suit questioning the sale.
The only other argument on behalf of the
appellant, which was advanced before the High Court and rejected by it and was
also put forward before us, was that the plaintiffs' suit was barred by
constructive res judicata. It appears that the appellant filed a suit O.S. No.
535 of 1944-45 for partition of items 1-15 against defendants 1 and 2 and the
widow and son of another of the original judgment-debtors, as also defendants 3
and 4. To that suit the plaintiffs were not parties. Plaintiff No. 2 was not
even born then. There Was another suit, O.S.
973 No. 47 of 1942-43 filed by the 11th
defendant in respect of item 16.To that suit also the plaintiffs were not
parties. As neither plaintiff was born at the time of O.S.
No. 47 of 1942-43, they having been born on
22-9-1944 and 19-9-1950, and the second plaintiff was not born at the time O.S.
No. 535 of 1944-45 was filed, and the first plaintiff though born Was not made
a party there can be no question of res judicata as against them. They are not
representatives of their father as contemplated in s. 11 of the Code of Civil
Procedure. It also appears that the earlier suits were filed before the
Munsiff's Court and were,. therefore, not decided by a court of competent
jurisdiction as the present suit has been filed in the Subordinate Judge's
Court. We are, therefore, satisfied that the appellant cannot succeed in his
plea of res judicata.
The appeal is, therefore, dismissed. The
appellant will pay the costs of respondents 1 and 2.
V.P.S Appeal dismissed..