TMI Blog1955 (3) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... ons with regard to the auction sale. He also contended that' the sale was null and void, inasmuch as the property could not be sold by reason of the provisions of Sections 4 and 43 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (I of 1951). The decree-holder denied the allegations and asserted that the application was false and vexations to the judgment-debtor's knowledge, Issues were framed; and on 29lh January 1952, the Civil Judge, Class II Janjgir, dismissed the application. 3. In appeal, the 3rd Additional District Midge, Bilaspur, found that the application of the judgment-debtor was maintainable, that 'there was a material irregularity which vitiated the sale by reason of the fact that no sale statement had been filed, prior to the issue of the proclamation' and that the village share and sir land were not liable for sale because of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Act, 1950 (I of 1951). The auction purchaser has now come up in miscellaneous second appeal to this Court. 4. The Respondents learned Counsel raised a preliminary objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Court held that a judgment-debtor is entitled to apply under Order XXI, Rule 90, to set aside a sale and that a prayer for relief which comes within the scope of Section 47 can be joined to a prayer in an application under that rule. No second appeal, therefore, lies, and the parties will now be heard on the question as to whether the second appeal before me can be treated as a revision. 7. This is an application under Section 151, read with Order 47, Rule 1, of the Code of Civil Procedure, for review of the order passed) by late Hemeon J. in Miscellaneous (Second); i Appeal No. 117 of 1952. JUDGMENT 8. The Applicant is an auction-purchaser in an execution sale and is the Appellant in the miscellaneous appeal. Non-Applicant No. 2 Mohammad Yusuf obtained a decree for money in C.S. No. 43-B of 1949 of the Court of Civil Judge Class II, Janjgir against non-Applicant No. 1 Ahmad Hafiz Khan. In execution of the decree, Judgment-debtor's 2 annas 5-7/45 pies malguzari share of Mouza Kumhari Pathan, with appurtenant Sir and Khudkasht was attached. The attachment was directed to continue under Order 21, Rule 57, Code of Civil Procedure, when the execution application was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the lower Appellate Court could not be deemed to be a decree within the meaning of Section 47, Code of Civil Procedure. It was accordingly directed that the appeal would be heard as revision. It is contended that this order proceeds on an error which is apparent on the face of the record. 13. It appears from the order of Hemeon J. that he was aware of the full scope of the enquiry. He referred to the judgment-debtor's objection to the sale not only under Order 21, Rule 90, Code of Civil Procedure, but also under Act I of 1951. He also took note of the decision of the Appellate Court on both these points, and came to the conclusion that although the matter fell under Section 47, Code of Civil Procedure, the appeal was covered by Order 43 Rule 1(j) and consequently the second appeal was barred under Section 104(2). In coming to this conclusion, he relied on AIR 1936 All 763 (A) and distinguished AIR 1942 Pat 146 (B) on the ground that it was a case that arose solely under Section 47, Code of Civil Procedure. It is thus evident that the learned Judge had deliberately come to the decision that he did. 14. Recently their Lordships of the Supreme Court have considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 16. The case had, therefore, to be dealt with within the frame-work of Section 115, Code of Civil Procedure. Recently their Lordships of the Supreme Court have considered the scope of revision in Keshardeo v. Radha Kissen AIR 1953 SC 23 (I), and have accepted the principles laid down by the Judicial Committee of the Privy Council in Rajah Amir Hassan Khan v. Sheo Baksh Singh 11 Ind App 237 (J), Bala Krishna Udayar v. Vasudeva Aiyar 44 Ind App 261 : AIR 1917 PC 71 (K), Venkatagir Ayyangar v. Hindu Religious Endowments Madras 76 Ind App 67: AIR 1949 PC 156 (L), and Joy Chand Lal Babu v. Kamalaksha Chowdhury 76 Ind App 131 : AIR 1949 PC 239 (M). 17. The lower Appellate Court has held that- i) the sale was voidable under Order 21, Rule 90, Code of Civil Procedure; and ii) the sale was also void under the provisions of Act I of 1951. The first question was doubtless within its jurisdiction as the appeal was competent under Order 43. Rule 1(j), Code of Civil Procedure. The second question also arose for decision in appeal for the reasons hereinafter stated. 18. In Prosunno Kumar Sanyal v. Kali Das Sanyal ILR Cal 683 (PC) (N), which, is the leading case on the point, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vesting, under Section 38. Section 43 provides for exemption of Sir and not of Khudkasht from attachment or sale in execution of any decree for the recovery of a debt. The term 'debt' has not been defined in the Act, but evidently it is independent of the liability created by the decree itself. In the absence of any specific definition, it has to be given the ordinary connotation of a loan which, as commonly understood, is an advance of money or in kind at interest. The normal connotation of the word 'debt' does not include a claim for damages but a liquidated money demand. Jones v. Thompson (1858) 120 E.R. 430 (P) and Ex parte Charles (1811) 104 ER 578 (Q). Section 4(e) was not, therefore, a bar to the sale of Sir and Khudkasht nor was the attachment or sale of Sir affected by execution of the decree in question because it was for recovery of damages for breach of a contract of sale of dhan and not of any debt. 21. The question involved in the case was whether it was within the jurisdiction of the executing Court to set aside the sale, either under Order 21, Rule 90, Code of Civil Procedure, or under Section 4(e) and 43 of Act 1 of 1951. The decision of this que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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