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Petambar Pujari v. Bhikari Mehar And Another
Factual and Procedural Background
The plaintiff sought a declaration of title in respect of disputed property. Having lost both in the original court and in the Court of Appeal, the plaintiff carried Second Appeal No. 4 to this Court. The learned single judge (Acharya, J.) also found against the plaintiff but granted leave to appeal to a Division Bench, which resulted in the present appeal.
A money decree had been obtained by the second defendant against the plaintiff and execution was initiated in Execution Case No. 239 of 1957. The plaintiff's disputed property was attached and, after proceedings, the Court sold the property on 15 April 1968. Defendant No. 1 purchased the property at the Court auction and the sale in his favour was confirmed on 20 June 1968; no objections to the sale were raised at the time. It is admitted in the record that the plaintiff is a member of the Scheduled Tribes while defendant No. 1 is not.
The plaintiff's suit alleged that the sale contravened the mandatory provisions of Section 22(3) of the Orissa Land Reforms Act, 1960, rendering the sale void and ineffective to confer title on defendant No. 1. Both defendants filed a joint written statement asserting that the requirements of Section 22(3) had been satisfied or should be deemed satisfied and that, in any event, the plaintiff, as judgment-debtor, had not taken the procedural steps in the execution proceedings and thus could not maintain the separate suit.
Legal Issues Presented
- Whether the auction sale of the plaintiff's holding in execution proceedings to a person not belonging to a Scheduled Tribe was invalid by reason of Section 22(3) of the Orissa Land Reforms Act, 1960.
- Whether the plaintiff, having had notice and opportunity during the execution proceedings but not having taken steps under Order 21 of the Civil Procedure Code to set aside the sale or object to saleability, is barred from maintaining a separate suit contesting the sale (i.e., the applicability of the doctrine of constructive res judicata / Order 21, Rule 92(3) CPC).
- Whether the executing Court was under an obligation to inquire, of its own motion, whether the judgment-debtor belonged to a Scheduled Tribe before ordering or permitting sale in execution.
Arguments of the Parties
Appellant's Arguments (Plaintiff / Mr. Rath)
- The protection contained in Section 22 of the Orissa Land Reforms Act is a beneficial provision enacted in public policy to protect weaker sections (members of Scheduled Tribes), and any breach of its mandatory provisions should be strictly viewed.
- There was an obligation on the executing Court to inquire whether the judgment-debtor belonged to a Scheduled Tribe before the property was put to sale; failure to do so rendered the sale void.
- Reliance was placed on the Supreme Court decision in Mathura Prasad v. Dossibai to contend that res judicata (a procedural rule) cannot supersede substantive statutory protection — i.e., res judicata should not bar a challenge where application of a statutory prohibition would otherwise nullify the transaction.
Respondents' Arguments (Defendants)
- The provisions of Section 22(3) must be deemed to have been complied with when the Court sold the property in favour of defendant No. 1, and consequently the sale is not void or invalid in law.
- The plaintiff, who had notice of the execution and the sale proceedings, did not take the appropriate procedural steps (for example, under Order 21 of the CPC) either to set aside the sale or to object to saleability at the proper stage; having failed to do so, the plaintiff is not entitled to maintain a separate suit contesting the sale.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Chandra Swain v. S.D.O., Sadar, Cuttack, (1972) 38 Cut LT 980 | Recognition that the statutory protection (like Section 22) is beneficial and partakes of public policy to protect weaker sections. | The Court accepted that the provision is beneficial and aligns with public policy but held this did not create an obligation on the executing Court to inquire of its own motion into the judgment-debtor's tribal status. |
| Baijnath Prasad v. Ramphal, AIR 1962 Pat 72 (Full Bench, Patna High Court) | Doctrine of constructive res judicata: if a party had notice and opportunity and failed to raise an objection at the proper stage, it cannot raise it later; res judicata applies in execution proceedings. | The Court relied on this Full Bench decision to support the proposition that the judgment-debtor, having had an opportunity and failing to object, is barred by constructive res judicata from subsequently challenging saleability. |
| Damodar Mahapatra v. Raghunath Pradhani, ILR (1969) Cut 202 | Affirmation by this Court of the principles of the Baijnath Prasad Full Bench decision regarding constructive res judicata and execution proceedings. | The Court noted this decision as a direct precedent of the Court which followed the Full Bench view and applied those principles to the facts at hand. |
| Mathura Prasad v. Dossibai, (1970) 1 SCC 613 : AIR 1971 SC 2355 | Principle that res judicata (a procedural rule) cannot operate to override a statutory rule of law when the earlier decision rests on an erroneous interpretation depriving a court of jurisdiction; jurisdictional errors do not get finality by res judicata. | The appellant relied on this case. The Court distinguished it, holding the question of jurisdictional error did not arise because the executing Court had jurisdiction to sell and to accord permission under Section 22(3); thus the Mathura Prasad principle was inapplicable on these facts. |
Court's Reasoning and Analysis
The Court began by identifying the operative statutory provisions. Section 22(3) of the Orissa Land Reforms Act provided that "No such holding shall, unless the Court otherwise directs, be sold in execution of a decree to any person not belonging to a Scheduled Tribe." Section 23 gave the Revenue Officer jurisdiction to declare transfers in contravention of subsection (1) of Section 22 invalid.
The Court then examined the procedural posture: the plaintiff had notice of the execution proceedings and the sale process. The plaintiff did not take any steps under Order 21 of the Civil Procedure Code to set aside the sale, nor did he object to the saleability of the property prior to sale. The Court emphasized that the fact of membership of a Scheduled Tribe was within the plaintiff's special knowledge and it was his duty to bring that to the executing Court's attention at the appropriate time.
Addressing the appellant's contention that the executing Court had a duty to inquire of its own motion into the tribal status of the judgment-debtor, the Court found no statutory provision imposing such an obligation on the executing Court. In the absence of such a provision, the Court held it was not open to fault the executing Court for not making that inquiry. While acknowledging that had the matter been brought to the Court's attention earlier, the sale might have been prevented, the Court stressed that after the sale has been completed and rights have crystallised, the plaintiff's silence at the appropriate stage cannot be overlooked.
The Court relied on the doctrine of constructive res judicata as explained in the Full Bench decision of the Patna High Court in Baijnath Prasad v. Ramphal and followed in Damodar Mahapatra v. Raghunath Pradhani. Those authorities hold that where a party had an opportunity to raise an objection in proceedings (including execution) and did not do so, it is barred from subsequently raising that objection once an order has been made which could not have been made if the objection had been upheld.
The Court considered the appellant's reliance on Mathura Prasad v. Dossibai, where the Supreme Court held that res judicata cannot operate to validate an order that was beyond a Court's statutory jurisdiction. The present Court distinguished that principle as inapplicable because here the executing Court had jurisdiction to effect the sale and to accord any necessary permission under Section 22(3). Consequently, the exception identified in Mathura Prasad did not assist the appellant on the facts before the Court.
Applying those principles to the facts — i.e., the plaintiff's knowledge and lack of timely objection or procedural action, the absence of any statutory obligation on the executing Court to enquire, and the precedents on constructive res judicata — the Court concluded that the plaintiff was barred from maintaining the separate suit to challenge the sale.
Holding and Implications
Holding: The appeal is DISMISSED.
Direct consequences: the decision below (which rejected the plaintiff's challenge to the execution sale) is affirmed. The Court ordered that the parties shall bear their own costs throughout; there had been no decree for costs in the appellate Courts below.
Broader implications: The Court applied established principles of constructive res judicata and execution procedure as described in the cited authorities and distinguished the Supreme Court decision relied upon by the appellant. The opinion does not purport to create a new rule of law beyond the application and clarification of existing precedents and statutory interpretation set out in the judgment.
R.N Misra, J.:— Plaintiff issued for declaration of title for the disputed, property and having lost in the original Court as also in the Court of appeal had carried Second Appeal No. 4 to this Court. Our learned brother Acharya, J. also found against the plaintiff but having granted leave to appeal to a Division Bench, this appeal has been filed.
2. The second defendant obtained a money decree against the plaintiff' and levied execution of the decree in execution case No. 239 of 1957. The disputed property of the plaintiff was attached and ultimately sold by the Court on 15-4-1968. Defendant No. 1 purchased the same in Court auction and the sale in his favour was confirmed on 20th of June, 1968, there having been no objections raised to the sale. Admittedly the plaintiff is a member of the Scheduled Tribes while defendant No. 1 is not. Plaintiff filed the suit on the basis that the sale was it violation of the mandatory provisions of Section 22(3) of the Orissa Land Reforms Act of 1960 and was, therefore, void, invalid and inoperative and did not confer on defendant No. 1 any title.
3. Both the defendants filed a joint written statement and claimed that the provisions of Section 22(3) of the Orissa Land Reforms Act must be deemed to have been complied with when the Court sold the property in favour of defendant No. 1; the sale in favour of defendant No. 1 is not void and invalid in law and, therefore, plaintiff as judgment-debtor having not taken appropriate steps in the execution proceeding is not entitled to file this suit for the relief claimed.
4. The Courts below have consistently found that while plaintiff is a member of the Scheduled Tribes, defendant No. 1 is not. The only question which requires examination is as to whether the auction sale is invalid in law. Section 22 of the Orissa Land Reforms Act (hereinafter referred to as the ‘Act’). At the relevant time ran thus:”
“(1) Any transfer of a holding or (a part?) thereof by a raiyat, belonging to a Scheduled Tribe shall be void except where it is in favour of
(a) a person belonging to a Scheduled Tribe, or
(b) a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer:
Provided that in case of a transfer by sale the Revenue Officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available, and in case of a gift unless he is satisfied about the bona fides thereof.
(2) The State Government may having regard to the law and custom applicable to any area prior to the date of commencement of this Act by notification direct that the restrictions provided in sub-section (1) shall not apply to lands situated in such area or belonging to any particular tribe throughout the State or in any part of it.
(3) No such holding shall, unless the Court otherwise directs, be sold in execution of a decree to any person not belonging to a Scheduled Tribe.
(4) … … …”
5. Section 23 declares that where a transfer is in contravention of sub-section (1) of Section 22, the Revenue Officer has jurisdiction to declare the same to be invalid.
6. It is not the plaintiff's case that he was not aware of the execution proceeding and the developments therein from stage to stage. He did not take any step in accordance with the provisions of O. 21 of the CPC for setting aside the sale nor did he raise any objection to the saleability of the property before the property was actually brought to sale. The fact that the judgment-debtor belonged to the Scheduled Tribes and was, therefore, entitled to the protection under Section 22 of the Act was within the judgment-debtor's special knowledge and it was his duty to invite the attention of the Court to such a position. Nothing, however, was done. The Courts below have, therefore, proceeded on the footing that the filing of a separate suit is barred in view of the provisions in Order 21, Rule 92(3) of the CPC.
7. Mr. Rath for the appellant claims that the provision contained in Section 22 of the Act is a beneficial one made in accord with the public policy and a breach thereof, therefore, should be strictly viewed. Undoubtedly the provision is a beneficial one and in accord with the accepted Public policy of protecting the weaker sections of the community, as has been held by a Bench of this Court in the case of Ram Chandra Swain v. S.D.O, Sadar, Cuttack, (1972) 38 Cut LT 980. We however, find it difficult to accept Mr. Rath's contention that there was an obligation on the part of the executing Court to inquire as to whether the judgment debtor before it belonged to the Scheduled Tribes before the property was put to sale. There is no obligation cast on the executing Court to make an inquiry as to whether a judgment-debtor before it belongs to any of the Scheduled Tribes or Scheduled Castes for purposes of determining whether such judgment-debtor is entitled to protection of the Act. In the absence of any provision fault cannot be found with the executing Court for not having made any such inquiry. We agree with Mr. Rath that the protection conferred by law has not worked out and if the matter had been brought to the notice of the Court at the appropriate stage, the sale may not have taken place. After the sale has taken place, however, the same approach is not possible. Rights of parties have already worked out and the judgment-debtor on account of his conduct of silence when he was required to speak or take action, cannot be overlooked.
8. In a Full Bench decision of the Patna High Court (Baijnath Prasad v. Ramphal, AIR 1962 Pat 72), similar question was examined at great length. Sale in that case had taken place contrary to Section 49-M (1)(b) of the Bihar Tenancy Act which provided:—
“No decree or order shall be passed by any Court for the sale of the right of a raiyat, who is a member of the scheduled tribes, scheduled castes, or backward classes in his holding or in any portion thereof, nor shall such right be sold in execution of any decree except as provided in sub-section (2).”
9. The Court held that the doctrine of res judicata was very much wider in scope than Section 11 of the CPC and applied to execution proceedings. If a party took an objection at a certain stage of a proceeding and did not take another objection which it might and ought to have taken at the proper stage, it must be deemed that the Court had adjudicated upon the other objection also and had held against it. The principle of constructive res judicata has been extended further. If a party has knowledge of a proceeding and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently, if the Court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against it. Though a transaction is void if a certain provision of law applies, it is for the Court to decide whether that provision is applicable. Once a competent Court has given a decision holding expressly or by implication that that provision of law is inapplicable and the transaction is not void, that decision operates as res judicata between the parties. So also if an order of the Court is deemed to have decided the question, the order is binding upon the parties. In paragraph 52 of the reported decision, the following conclusion was reached:—
“… … … … It is immaterial whether the sale of the lands in question is void or voidable because we have to consider, at present, the consequence of the judgment-debtor not having raised the objection before the sale when he might and ought to have raised it. In accordance with the views which I have expressed, I hold that the judgment-debtor is barred by the principle of constructive res judicata from raising the objection on the ground of non-saleability of the kasht lands.”
10. To the same effect is a direct decision of this Court in the case of Damodar Mahapatra v. Raghunath Pradhani, ILR (1969) Cut 202, which had followed the principles indicated in the aforesaid Full Bench decision.
11. Mr. Rath for the appellant placed reliance on a decision of the Supreme Court in the case of Mathura Prasad v. Dossibai, (1970) 1 SCC 613 : AIR 1971 SC 2355 and contended that res judicata which is a rule of procedure cannot supersede the law of the land. The question for consideration before the Supreme Court was one of jurisdiction of the Court and the Supreme Court was of the view that if by an erroneous interpretation of a statute, the Court held that it had no jurisdiction, that determination would not operate as res judicata. Similarly by an erroneous decision if a Court assumes jurisdiction which it did not possess by Statute, the question cannot operate as res judicata between the parties, whether the cause of action in the subsequent litigation is the same or otherwise, because, if those decisions are considered as conclusive it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature.
12. Such a question does not arise here. As already noticed, the Court had jurisdiction to sell the property and even accord permission for its sale as provided under Section 22(3) of the Act. In view of this position, we do not think that in the facts of the case, the rule indicated in the Supreme Court decision should apply.
13. we reach the same conclusion as our learned brother Acharya, J., had and accordingly this appeal must stand dismissed. As we find, there was no decree for costs in any of the appellate Courts. In our view, it is appropriate that the parties are called upon to bear their own costs throughout.
14. Das, J.:— I agree.
15. Appeal dismissed.
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