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PETITIONER: N.   KRISHNAIH SETTY

       Vs.

RESPONDENT: GOPALAKRISHNA & ORS.

DATE OF JUDGMENT03/09/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH

CITATION:  1974 AIR 1911            1975 SCR  (2) 975  1974 SCC  (2) 624

ACT: Mysore Agriculturists’  Relief Act, 1928    s. 14--Scope of. Code   of   Civil   Procedure   (Act   5    of   1908),   s. 11--Applicability.

HEADNOTE: 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  res- pondents 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  judg- ment 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)

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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]

JUDGMENT: 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 1956. S.   C.  Malik  A. S. K. Rao arid M. R. K.  Pillai  for  the appellant. K.   Rajendra Chaudhuy, for the respondents Nos. 1-8. 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 September- 1937. 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  14-5-1952. 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.

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             (2)   The  Court may at the time of passing  a               decree   for   money  directing   payment   by               instalments  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 sub- section (2) shall be  sold               in  pursuance  of such attachment  unless  the               judgement  debtor is in arrears in respect  of               two  or more instalments under the decree. We are, in agreement with the view taken by the Courts below and the High Court that the attachment before judgement 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  Civil Procedure. 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

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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.. 974