1.This is a judgment debtor's appeal. The decree-holders obtained a decree against the appellant and in execution of the decree they got this 3/8th share in a house attached and put up for sale. The sale was held on the 19th January 1943. It was confirmed on the 27th April 1943 in favour of Chet Ram who had purchased the property at the auction sale. On 26th November 1949 the judgment-debtor filed an objection under Section 60 of the CPC in which he contended that he was an agriculturist and the house sold was exempt from attachment and sale under Section 60 of the CPC. He therefore prayed that the sale be set aside and the house be released in his favour. Besides the two decree-holders Shanti Lal and Kanti Lal, Chet Ram the auction purchaser was also impleaded as a party to this objection.
2. The objection was opposed on behalf of the auction purchaser as well as decree-holders and one of the points raised by them was that as the objection had been filed after the sale had been confirmed it was not maintainable. This plea found favour with the executing court and it, therefore, dismissed the objection without going into the other questions raised. It is against the order dismissing the objection that the present appeal has been preferred. In this appeal, however, the judgment-debtor impleaded only the two decree-holders as respondents. He did not implead the auction purchaser. The original judgment-debtor died during the pendency of the appeal and his son has been brought on record in his place. One of the respondents Kanti Lal also died and his heirs have been impleaded in his place.
3. When the appeal was called up for hearing Sri Baleshwari Prasad and Sri V.K Gupta wanted to appear on behalf of the auction purchaser Chet Ram and to raise certain preliminary objection. They had, however, to withdraw when they discovered that Chet Ram was not a party to the appeal at all.
4. Realising that the omission to implead Chet Ram the auction purchaser may make the appeal formally defective and affect its maintainability the appellant put in an application praying that Chet Ram be allowed to be impleaded as a respondent at this stage.
5. So far as this application for impleading the auction purchaser at this stage is concerned I am of opinion that no good case is made out for allowing the prayer. The appeal was filed in 1952. The appellant had himself impleaded the auction purchaser in the objection which he had filed in the executing court. The auction purchaser had put in appearance and had opposed the objection. It was in his presence and on his contest as well as that of the decree-holders that the objection was dismissed. If knowing all these facts the appellant omitted to implead the auction purchaser in the appeal he has only himself to blame. He cannot be allowed to implead the auction purchaser now after more than six years have expired since the decision in favour of the auction purchaser was made and the appeal so far as he is concerned became time barred long ago.
6. It, is, however, said that the auction purchaser was not a necessary party and it was therefore, not necessary for him to be impleaded in the appeal. It is difficult to accept the contention. It cannot be denied that as a result of the sale being confirmed in his favour the auction purchaser has row become the owner of the property sold. If he is not already in possession he is entitled to get possession. The appellant wants the sale in his favour to be set aside. If he is not a party to the case any decision about the invalidity of the sale will not be binding on him and will not affect his position or interest. The sale cannot therefore be set aside in his absence.
7. If an order setting aside the sale is passed without the auction purchaser being made a party it would be wholly ineffective. The appellant realised the difficulty. He therefore impleaded the auction purchaser in the objection he filed. He did not say then that the auction purchaser was not a necessary party and was being impleaded only as a matter of precaution. The auction purchaser was allowed to contest the objection and actually succeeded in getting it dismissed. So far as he is concerned therefore the objection has finally failed and the sale in his favour is good and binding. How can it be said in these circumstances that Chet Ram is an unnecessary party.
8. It, therefore, appears to me that the appeal is defective in form inasmuch as the auction purchaser who was vitally interested in the case and in whose favour the sale had been confirmed was not impleaded in the appeal and in his absence it is not possible to pass any order that will adversely affect his interest.
9. On merits also the view taken by the executing court appears to be correct. It is not disputed that this objection, raising the point that the property was not attachable and saleable under Section 60 of the CPC was raised after the sale in favour or Chet Ram had been confirmed. The question is whether after the sale has been confirmed and the rights of the auction purchaser have come into existence is it open to the judgment debtor to object to the sale on the ground that the properly should not have been sold.
10. The question did not arise directly in the case of Pokhar Singh v. Tula Ram, 1935 All LJ 1137 : (AIR 1935 All 1016) but was considered in that case. That was a case in which an auction had been held but before it was confirmed the judgment-debtor filed an objection under Section 47 of the CPC raising the point that the property was not sale able as it was the house of an agriculturist the objection was thrown out on the ground that it had been filed too late but in appeal a Bench of this Court held that the objection was entertain able even at that stage. Sulaiman, C.J who delivered the judgment of the Bench observed at page 1139 of the report:
“Admittedly the right to object to the attachment of a non-attachable property can arise after the attachment has taken place. It would seem to follow that the right to object to the sale of a non-saleable property ought also to arise after such a sale has taken place. When a sale has been confirmed and the property has become completely vested in the auction purchaser, it may be said to imply a decision that the property was saleable, which may operate as a bar against any objection raised by the judgment-debtor after the confirmation, but that argument cannot be applied to a case where there has yet been no confirmation and the sale is still subject to confirmation.”
The view taken therefore was that though an objection of the kind which has been raised by the judgment-debtor in the present case could be maintained before the sale was confirmed in favour of a stranger auction purchaser, it could not be maintained after the sale had been confirmed and the property had completely vested in the auction purchaser. The ground on which the view was based was that after the confirmation of the sale it must be held to have been decided at least by implication that the property was really saleable. That decision was binding on the judgment-debtor. In view of it he could not be allowed to say that the property was not saleable and the sale was bad on that account. According to this decision therefore an objection about the non-saleability of a property cannot be entertained after the sale has been confirmed in favour of a stranger as has been done in the present case.
11. Some of the other Courts in India have gone even one step further and have held that such an objection about non-saleability of the property must be raised before the sale is held. Reference may be made in this connection to Sheo Shanker Lal v. Mt Bittan Kuar, AIR 1942 Oudh 308, Sakar Lal Jamnadas v. Jer Bai Sorabji Patel, AIR 1934 Bom 348, Gauri v. Ude, AIR 1942 Lah 153 (FB) and Matam Basayya v. Hanumantha Reddi, AIR 1944 Mad 548.
12. Reliance has, however, been placed on behalf of the appellant on the case of Satdeo Koeri v. Suraj Bali Singh, AIR 1948 All 16 in which Allsop, J. took the view that if a sale had been held without jurisdiction it could be challenged at any time. That case related to a grove which had been sold by the civil court though it had no jurisdiction to sell it. On the basis of this decision it is urged that because the house of an agriculturist used for residential purpose is not saleable in view of the provisions of Section 60 of the CPC, an objection in that regard can be taken at any stage even after the sale has been confirmed. The case of Satdeo Koeri, AIR 1948 All 16 appears to be clearly distinguishable. In that case fee sale had been held by court which had no jurisdiction. The sale should have really been held by another court.
13. It was on that account held to be void. In the present case there was no want of jurisdiction in the court itself. The house in dispute could be sold only by the civil court and not by any other court. The case of Satdeo Koeri, AIR 1948 All 16 is thus not an authority for the proposition that the sale of a property which is not really saleable is void and without jurisdiction even if it is held by a competent court and no objection on the ground of non-saleability is raised before the sale is confirmed. Moreover from what was observed in Pokhar Singh's case, 1935 All LJ 1137 : (AIR 1935 All 1016) it appears that if a sale has already been held and confirmed the plea that the property was not saleable must be held to have been decided against the judgment-debtor constructively and cannot on that account be raised again.
14. That a decision of that kind is binding on the judgment-debtor was held by a Full Bench of this Court in the case of Thakur Din v. Sita Ram, AIR 1939 All 399 also. If, therefore, the question of the saleability or otherwise of the house has been decided against the judgment-debtor either actually on an objection being raised or constructively on account of an omission to raise the objection and permitting the sale to be confirmed. I think it is not open to the judgment-debtor to raise the objection after the sale has been confirmed. The case of Satdeo Koeri, AIR 1948 All 16 does not, therefore, appear to be of much help to the appellant.
15. I am therefore, of opinion that the learned Civil Judge was right in overruling the objection of the appellant.
16. The appeal has, therefore, no force and is dismissed with costs.
B.D/K.S.B
17. Appeal dismissed.